This question is based on chapter 4 of Bilchitz et al. In this chapter we saw the question raised of how judges should adjudicate in the context of the constitutions of post-colonial Africa. Langa CJ and Moseneke DCJ both argued for the necessity of substantive reasoning that transcends formalist reasoning but does not become legislative.

Question

This question is based on chapter 4 of Bilchitz et al. In this chapter we saw the question raised of how judges should adjudicate in the context of the constitutions of post-colonial Africa. Langa CJ and Moseneke DCJ both argued for the necessity of substantive reasoning that transcends formalist reasoning but does not become legislative.

Art 39 of the South African Constitution requires: ‘[w]hen interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’.

Against this background critically evaluate, in a paragraph of between 450-500 words, whether Ronald Dworkin’s constructive interpretation is a suitable approach to adjudication in the South African context. (If you do further research to answer this question - remember to add references to any sources used. References do not count to your answer’s word count).

Answer 1

Ronald Dworkin's theory of constructive interpretation emphasizes the importance of interpreting legal texts in a way that best promotes justice and equality. In the South African context, where the Constitution places a strong emphasis on promoting the spirit, purport, and objects of the Bill of Rights, Dworkin's approach seems particularly relevant. By applying constructive interpretation, judges in South Africa can ensure that their decisions are not merely based on the text of the law, but also on the constitutional values of equality, dignity, and freedom.

Dworkin's theory acknowledges the need for judges to go beyond formalist reasoning and take into account the broader social and historical context in which laws are made. This is especially important in South Africa, a country with a complicated history of colonialism and apartheid. By considering the constitutional principles and values that underpin South Africa's legal system, judges can ensure that their decisions are in line with the transformative objectives of the Constitution.

Furthermore, constructive interpretation allows for a principled and reasoned approach to adjudication, which is essential for ensuring consistency and predictability in the legal system. By engaging in a dialogue with the values and principles of the Constitution, judges can develop a coherent and well-grounded jurisprudence that reflects the constitutional commitments of the country.

In conclusion, Ronald Dworkin's constructive interpretation provides a suitable approach to adjudication in the South African context. By emphasizing the importance of promoting justice and equality, acknowledging the historical and social context of legal rules, and engaging with the constitutional values of the country, Dworkin's theory offers a framework for judges to interpret and apply the law in a manner that is consistent with the transformative objectives of the Constitution.

References:
- Ronald Dworkin, "Law's Empire" (1986)
- South African Constitution: https://www.gov.za/documents/constitution-south-africa-1996.