This book explains how judicialisation of politics leads to the politicisation of adjudication and further weaponisation of the law. Exploring the judicial-political dynamics of South Africa from 2009 onwards, the work traces the consequences of the judicialisation of politics for institutional resilience and broader constitutional stability.
This book explains how judicialisation of politics leads to the politicisation of adjudication and further weaponisation of the law. Exploring the judicial-political dynamics of South Africa from 2009 onwards, the work traces the consequences of the judicialisation of politics for institutional resilience and broader constitutional stability.
Kate Dent received her doctorate from the School of Law, University of Cape Town, South Africa.
Inhaltsangabe
Preface 1 Introduction Lawfare and its permutations Lawfare in the international space Lawfare by insurgents Lawfare as a tool of authoritarianism Lawfare and the judicialisation of politics in South Africa Dominant party democracy The Constitutional Court's unsettled role This book's approach Constitutional resilience 2 The multiple dimensions of judicial legitimacy Concepts of legitimacy Political legitimacy Sociological legitimacy Legal legitimacy Moral legitimacy Conflict and interconnections Legitimacy and judicial-political dynamics Conclusion 3 The judicialisation of politics The "political" The institutional heritage of the legalisation of politics Reasons for judicialisation The nature of a Constitutional Court Constitutional patriotism Constitutional design Rights culture Administrative justice weaknesses Undoing unlawfulness unlawfully Abdication and institutional failings Institutional power imbalances Acquiescence to judicial power Making a distinction Conclusion 4 Consequences of judicialisation Political attack Separation of powers, relationships and conversations Backlash, curtailment and judicial retreat Dominance and dysfunction Abusive constitutionalism Judicialisation of politics and declining dominance Impunified disregard Conclusion 5 Politicisation of law: The judicial view Judicialisation of politics: effect on the judicial environment Enfolding the lower courts Judicial appointment Acting judges Commissions of inquiry Pervading influence, depleting responsibility Shifting blame Conclusion 6 The difficulty in achieving judicial effectiveness in a judicialised climate Non-compliance Conditions of effectiveness Judicialisation and the political salience of the case Clear legal authority Division and dissent Remedial action in institutional suits Authoritative legitimacy Conclusion 7 Tracing the legitimacy of intervention strategies Operating in hostility The formalist response Detachment Responsiveness Judicial statesmanship, responsiveness and the rule of law Judicial review and democratic legitimacy Holding public power to account The legitimacy of intervention The judicial response to lawfare tactics Conclusion 8 The Office of the Public Protector and the Court: A wicked problem case study Nkandla The effect of the CC's Nkandla Judgment State capture Unintended consequences Personal cost orders and a motion of no confidence Analysis Conclusion 9 Conclusion Where things stand The South African crucible Laws authority From "illegitimacy" to legitimacy From legitimacy back to illegitimacy Judicialisation and identity politics The only sure bulwark Bibliography Index
Preface 1 Introduction Lawfare and its permutations Lawfare in the international space Lawfare by insurgents Lawfare as a tool of authoritarianism Lawfare and the judicialisation of politics in South Africa Dominant party democracy The Constitutional Court's unsettled role This book's approach Constitutional resilience 2 The multiple dimensions of judicial legitimacy Concepts of legitimacy Political legitimacy Sociological legitimacy Legal legitimacy Moral legitimacy Conflict and interconnections Legitimacy and judicial-political dynamics Conclusion 3 The judicialisation of politics The "political" The institutional heritage of the legalisation of politics Reasons for judicialisation The nature of a Constitutional Court Constitutional patriotism Constitutional design Rights culture Administrative justice weaknesses Undoing unlawfulness unlawfully Abdication and institutional failings Institutional power imbalances Acquiescence to judicial power Making a distinction Conclusion 4 Consequences of judicialisation Political attack Separation of powers, relationships and conversations Backlash, curtailment and judicial retreat Dominance and dysfunction Abusive constitutionalism Judicialisation of politics and declining dominance Impunified disregard Conclusion 5 Politicisation of law: The judicial view Judicialisation of politics: effect on the judicial environment Enfolding the lower courts Judicial appointment Acting judges Commissions of inquiry Pervading influence, depleting responsibility Shifting blame Conclusion 6 The difficulty in achieving judicial effectiveness in a judicialised climate Non-compliance Conditions of effectiveness Judicialisation and the political salience of the case Clear legal authority Division and dissent Remedial action in institutional suits Authoritative legitimacy Conclusion 7 Tracing the legitimacy of intervention strategies Operating in hostility The formalist response Detachment Responsiveness Judicial statesmanship, responsiveness and the rule of law Judicial review and democratic legitimacy Holding public power to account The legitimacy of intervention The judicial response to lawfare tactics Conclusion 8 The Office of the Public Protector and the Court: A wicked problem case study Nkandla The effect of the CC's Nkandla Judgment State capture Unintended consequences Personal cost orders and a motion of no confidence Analysis Conclusion 9 Conclusion Where things stand The South African crucible Laws authority From "illegitimacy" to legitimacy From legitimacy back to illegitimacy Judicialisation and identity politics The only sure bulwark Bibliography Index
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