The secondary role of the spirit purport and objects of the Bill of Rights in the common law's development
| dc.contributor.author | Fagan, Anton | |
| dc.date.accessioned | 2018-03-02T11:02:11Z | |
| dc.date.available | 2018-03-02T11:02:11Z | |
| dc.date.issued | 2010 | |
| dc.date.updated | 2016-01-15T09:44:19Z | |
| dc.description.abstract | The South African Constitutional Court endorses the following proposition: According to the Constitution, the spirit, purport and objects of the Bill of Rights may be reasons for developing the common law. The court has not expressly endorsed this proposition. But it is entailed by a claim that the court has made repeatedly, namely that the Constitution obliges every court to develop the common law whenever it does not accord with the spirit, purport and objects of the Bill of Rights. As the court put it in the Carmichele case: ‘[W]here the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.’1 Notwithstanding its endorsement by the Constitutional Court, the proposition is false. It is not so that the Constitution regards the spirit, purport and objects of the Bill of Rights as possible reasons for developing the common law. As possible reasons for developing the common law, the Constitution recognises only the following: (1) the rights in the Bill of Rights; (2) justice; and (3) the rules of the common law itself. | |
| dc.identifier.apacitation | Fagan, A. (2010). The secondary role of the spirit purport and objects of the Bill of Rights in the common law's development. <i>South African Law Journal</i>, http://hdl.handle.net/11427/27623 | en_ZA |
| dc.identifier.chicagocitation | Fagan, Anton "The secondary role of the spirit purport and objects of the Bill of Rights in the common law's development." <i>South African Law Journal</i> (2010) http://hdl.handle.net/11427/27623 | en_ZA |
| dc.identifier.citation | Fagan, A. (2010). The secondary role of the spirit, purport and objects of the Bill of Rights in the common law's development. South African Law Journal, 127(4), 611-627. | |
| dc.identifier.ris | TY - Journal Article AU - Fagan, Anton AB - The South African Constitutional Court endorses the following proposition: According to the Constitution, the spirit, purport and objects of the Bill of Rights may be reasons for developing the common law. The court has not expressly endorsed this proposition. But it is entailed by a claim that the court has made repeatedly, namely that the Constitution obliges every court to develop the common law whenever it does not accord with the spirit, purport and objects of the Bill of Rights. As the court put it in the Carmichele case: ‘[W]here the common law deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to develop it by removing that deviation.’1 Notwithstanding its endorsement by the Constitutional Court, the proposition is false. It is not so that the Constitution regards the spirit, purport and objects of the Bill of Rights as possible reasons for developing the common law. As possible reasons for developing the common law, the Constitution recognises only the following: (1) the rights in the Bill of Rights; (2) justice; and (3) the rules of the common law itself. DA - 2010 DB - OpenUCT DP - University of Cape Town J1 - South African Law Journal LK - https://open.uct.ac.za PB - University of Cape Town PY - 2010 T1 - The secondary role of the spirit purport and objects of the Bill of Rights in the common law's development TI - The secondary role of the spirit purport and objects of the Bill of Rights in the common law's development UR - http://hdl.handle.net/11427/27623 ER - | en_ZA |
| dc.identifier.uri | http://hdl.handle.net/11427/27623 | |
| dc.identifier.vancouvercitation | Fagan A. The secondary role of the spirit purport and objects of the Bill of Rights in the common law's development. South African Law Journal. 2010; http://hdl.handle.net/11427/27623. | en_ZA |
| dc.language.iso | eng | |
| dc.publisher.department | Department of Private Law | en_ZA |
| dc.publisher.faculty | Faculty of Law | en_ZA |
| dc.publisher.institution | University of Cape Town | |
| dc.source | South African Law Journal | |
| dc.source.uri | https://juta.co.za/law/products/3601-south-african-law-journal/ | |
| dc.title | The secondary role of the spirit purport and objects of the Bill of Rights in the common law's development | |
| dc.type | Journal Article | |
| uct.type.filetype | Text | |
| uct.type.filetype | Image |