Theunis Roux

Courts and Social Transformation in New Democracies : An Institutional Voice for the Poor?

Contents: Foreword Introduction, Pilar Domingo. Theory: Theories of democracy, the judiciary and social rights, Roberto Gargarella Courts and social transformation: an analytical framework, Siri Gloppen The changing role of law and courts in Latin America: from an obstacle to social change to a tool of social equity, Javier A. Couso. Case Studies: Social rights as middle-class entitlements in Hungary: the role of the constitutional court, AndrA!s SajA^3 The record of the South African constitutional court in providing an institutional voice for the poor: 1995-2004, Jackie Dugard and Theunis Roux The Enforcement of social rights by the Colombian constitutional court: cases and debates, Rodrigo Uprimny Yepes Courts and social transformation in India, R. Sudarshan Judicial enforcement of social rights: perspectives from Latin America, Christian Courtis Brazilian courts and social rights: a case study revisited, Jose Reinaldo de Lima Lopes Courts under construction in Angola: what can they do for the poor?, Elin Skaar and Jose OctA!vio Serra Van-DA * nem Weak courts, rights and legal mobilisation in Bolivia, Pilar Domingo Courts, rights and social transformation: concluding reflections, Roberto Gargarella, Pilar Domingo and Theunis Roux. Bibliography Index.

Pro-poor court, anti-poor outcomes : explaining the performance of the South African Land Claims Court

Abstract The Land Claims Court of South Africa (‘the LCC’) was established in 1996 under the Restitution of Land Rights Act 22 of 1994, one of the first statutes of the new democratic government. Anyone reading the Restitution Act would have had no doubt that the LCC had been established to oversee the reversal of eighty years of state-orchestratedlandd ispossession. Andyet, almost ten years after its establishment, the LCC plays no meaningful role in the landrestitut ion process, and administers two other statutes that, at least in part because of the way they have been interpretedb y the Court, are regardedas as ‘facilitating’ a new wave of land dispossession. In seeking to explain this anomaly, this article draws on the work of a group of scholars who are studying the role of courts in new democracies. The study design assumes that the capacity of courts to be used as agents of social transformation is influenced by a number of indicators, including institutional indicators, indicators of poor groups’ voice, resource indicators, and indicators of access to justice barriers. What makes the study of the LCC interesting from this perspective is that it provides an opportunity to eliminate most of the variables that typically condition the social transformation performance of courts, viz indicators of poor groups’ voice, resource indicators and access to justice barriers. If the theoretical model tested in this article is sound, this means that the performance of the LCC must be explicable in terms of one or more of the positedinstitutional indicators. Testing this hypothesis, the article examines four areas of law in which plausible pro-poor arguments were made before the LCC, only for these arguments to be rejected or ignored in the decisions handed down. The article then attempts to explain these ‘antipoor’ outcomes by reference to three institutional indicators: the doctrinal force of the common law, the influence of legal culture, andprofessional concerns amongst the judges about how their decisions are perceived. The article finds that the continuing influence of legal formalism in South African professional legal culture provides an adequate explanation for most of the decisions studied. Where a legal culture is overwhelmingly formalist, the use of general, discretion-conferring language in social transformation statutes is likely to be less successful than the enactment of detailed, prescriptive rules.

The Nicholson Judgment: An Exercise in Law and Politics

The Nicholson judgment was clearly a precipitating factor in the resignation of former South African President Thabo Mbeki in 2008. Engaging with the judgment in its own terms, this note first puts forward a best legal interpretation of the judgment, covering the doctrines of prosecutorial independence and legitimate expectations. It then identifies the degree to which the comment in the judgment may be termed politically activist. In the authors’ view, Nicholson tackled political issues in his judgment that he need not have: in particular, allegations of executive interference in the independence of the prosecutions authority. Assuming that Nicholson J’s text may be read as an attempt to bolster the legitimacy of the judiciary, the note explores whether it succeeds on those terms and concludes that the judgment is ultimately an example of failed dramatic art.

Constitutional Courts as Democratic Consolidators: Insights from South Africa after 20 Years

Twenty years after the end of apartheid, South Africa’s Constitutional Court is one of the few meaningfully independent public institutions in the country. While not wholly autonomous from politics, the Court has shown itself to be detached enough on occasion to hold the ruling African National Congress (ANC) to account. This article explores how the Court has come to play this role. It starts by identifying two contrasting currents in the literature on the conditions for independent judicial decision-making: one that emphasises the determining influence of contextual factors and another that stresses constitutional courts’ capacity strategically to build their institutional power. The article then uses these two currents to suggest a qualified feedback-loop theory of the role of constitutional courts in processes of democratic consolidation. By carefully managing public perceptions of their appropriate role in national politics, the theory runs, constitutional courts may be able to expand the range of democratic rights that they are able to enforce. In turn, this may contribute to improvements in the functioning of the democratic system in ways that sustain the court’s democracy-strengthening capacity over time. The second half of the article illustrates the explanatory power of this theory in the South African case. While the Constitutional Court has been reluctant to offer a substantive theorisation of the threat posed by the ANC’s ongoing electoral dominance, it is argued, it has not been an entirely passive actor in the drama of South African politics. Using traditional formalist methods of legal reasoning, it has been able to expand the reach of the Constitution into areas traditionally thought to be off limits. In this way, the Court has been able to counteract some of the more pernicious effects of the country’s slide into maladministration, patronage politics and corruption.

The Incorporation Problem in Interdisciplinary Legal Research: Some Conceptual Issues and a Practical Illustration

The seriousness of the incorporation problem in interdisciplinary legal research, this article argues, depends on how legal research is understood. If legal research is understood as a single, inherently interdisciplinary discipline, the problem largely falls away. On this view, the incorporation of other disciplines into legal research is what legal academics have for the last 40 years already successfully been doing. If, on the other hand, legal research is best conceived as a multi-disciplinary field, consisting of a core discipline – doctrinal research – and various other types of mono-disciplinary and interdisciplinary research, the incorporation of other disciplines presents real difficulties. For legal academics engaged in socio-legal research, in particular, two problems arise: the practical problem of trying to address a legal professional and academic audience at the same time and the philosophical problem of trying to integrate the internal perspective of doctrinal research with the external perspective of other disciplines. In the final part of the article, these practical and philosophical difficulties are illustrated by reference to the author’s research on the politics of judicial review in new democracies.