Essay Judicial Interpretation Of Democracy And Rule Of Law

1769 Words Sep 17th, 2015 8 Pages
Charles Hughs, a former Chief Justice of the United States Supreme Court, once commented that “We are under the constitution, but the constitution is what the judges say it is…” This comment depicts the importance of judicial interpretation of Constitutions not only in South Africa, but around the world. I argue that the South African Constitution allows for the constant evolution of itself, through changes in interpretations, to best fit the current social needs of the society and promote transformation. This freedom of interpretation is constrained to limit the possibility of negative consequences due to inarticulate premises of the judicial interpreters with respect to matters of feeling, belief or conviction in the context surrounding the legal issue.
Constitutionalism provides certain structures for governance and attempts to legitimize the transfer of power from the people, to those elected to represent them through a fair democratic process. This legitimization of power, in the form of the general acceptance of democracy and rule of law, depicts constitutionalism as being applicable to the fight for individual freedoms . It can therefore be said that constitutionalism is more than the mere attempt to govern a society which cannot be said for the constitutions under colonial rule. The freedoms required by society can often change due to transformative events which give rise to new challenges while possibly eradicating old ones. This presents a need for the…

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