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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Judicious avoidance
Author:Currie, IainISNI
Year:1999
Periodical:South African Journal on Human Rights
Volume:15
Issue:2
Pages:138-165
Language:English
Geographic term:South Africa
Subjects:judgments
constitutional courts
Abstract:This paper describes and defends the decisional minimalism practised by the Constitutional Court of South Africa. Discussing recent cases it concludes that in its first five years of existence the Court has settled on a characteristic style of decisionmaking: cautious, incremental, particularistic and theoretically modest. In support of its minimalist style of jurisprudence the Court can draw on a repertoire of mechanisms for deferring or avoiding the making of decisions. These are the rules of justiciability and the procedural rules allowing the Court to decide not to decide a case. Decisional minimalism entails avoiding decisions that do not have to be made and making decisions that are as modest as possible in scope and influence. Besides institutional and pragmatic considerations there are political motivations in favour of minimalism. There is much to be gained from an analysis of the Court based on a minimalist model of adjudication, rather than on more familiar models that require constitutional judges to display a great deal more ambition. Even if the stakes are higher in constitutional adjudication, and the consequences of a decision more far-reaching, this mandates more caution and restraint rather than less. Notes, ref., sum. (Response by Christopher J. Roederer in: South African Journal on Human Rights, vol. 15, pt. 4 (1999), p. 486-512.)
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