CONSTITUTIONAL ROUNDTABLE
presents
Professor Theunis Roux
Faculty of Law, The University of New South Wales
A Conceptual Framework for Assessing the Performance of Constitutional Courts
in Legal and Political Terms
Thursday April 21, 2011
12:30 to 2:00 PM
Faculty Lounge, Flavelle House
78 Queen’s Park
This paper is a draft of Chapter 2 of a book-length study of the first South African Constitutional Court (‘the Chaskalson Court’). Following a discussion of ‘the Chaskalson Court’s achievement’ in Chapter 1, the chapter develops a conceptual framework for assessing the performance of constitutional courts in legal and political terms. The prerequisite for any such framework, the chapter argues, is a mediating concept that will enable us to examine how constitutional courts manage the sometimes contradictory legal and political influences impacting on them (‘the law/politics tension’). Though not ideal in all respects, the best candidate for such a concept is the notion of constraint, which is used by both legal theorists and judicial politics scholars to refer to a particular type of influence on constitutional courts, disregard for which entails a loss in legal or political terms. Following the discussion in Chapter 1, the constraining influence of law is said to consist in a court’s need, on pain of triggering a loss in legal legitimacy, to abide by institutionalised, legal-professional norms of judicial reasoning. The constraining influence of politics, in turn, is said to consist in the capacity of major political actors to attack the court in ways that undermine its institutional independence. By conceiving of the legal and political influences impacting on constitutional courts as interacting forms of constraint in this way, it is possible to see how a court’s response to one set of constraints may affect its ability to respond to the other. It is also possible to see that the precise interaction between the legal and political constraints impacting on a court will depend on the relative strength of these constraints. Chapter 2 represents this idea in the form of a comparative constitutional court quadrant, the four sectors of which correspond to four ideal types. The performance of a constitutional court in legal and political terms, the chapter argues, is in the end contingent on (a) its starting position on the quadrant and (b) its ability to negotiate the law/politics tension so as to maintain its position within, or manoeuvre itself towards, the normatively preferred sector of the quadrant.
Theunis Roux is Professor of Law at the University of New South Wales in Sydney, Australia. Prior to his move to Australia in January 2009, he was the founding director of the South African Institute for Advanced Constitutional Law (SAIFAC) – a legal research institute based on Constitution Hill, Johannesburg. In this capacity, he served for four years as the Secretary-General of the International Association of Constitutional Law (IACL). His research interests include comparative constitutional law, interdisciplinary research in law and politics, constitutional property rights review (particularly in relation to land reform) and land restitution.
A light lunch will be provided.
For more information, please contact Professor Lorraine Weinrib at l.weinrib@utoronto.ca or Nadia Gulezko at n.gulezko@utoronto.ca.
