Page 1. CONSTITUTIONAL PROTECTION OF PROPERTY AND LAND REFORM Theunis Roux* CONSTITUTIONAL DEVELO... more Page 1. CONSTITUTIONAL PROTECTION OF PROPERTY AND LAND REFORM Theunis Roux* CONSTITUTIONAL DEVELOPMENTS CASE LAW In the year under review three different High Courts had occasion to interpret ...
The Indonesian Constitutional Court’s surprisingly early and forceful assertion of its veto role ... more The Indonesian Constitutional Court’s surprisingly early and forceful assertion of its veto role in national politics has attracted a fair amount of academic attention. Contributions to date have emphasised three main explanatory factors: the charismatic leadership provided by the Court’s first Chief Justice, Jimly Asshiddiqie; Indonesia’s fragmented political party system; and the judges’ preparedness boldly to assert the Court’s powers in a way that built its public support. But is the Court still as powerful in its second decade as it was in its first? Two incidents in particular suggest that the Court’s strength may be declining: the attempted legislative curtailment of the Court’s mandate in 2011, and the resignation in 2013 of its third Chief Justice, Ali Mochtar, following his arrest on charges of corruption. While neither of these events has as yet resulted in any permanent change to the Court’s jurisdiction and powers, there is a sense that the Court is in trouble – that its heyday has passed and that it is less influential than it used to be. The purpose of this article is to evaluate this claim. It starts by developing a conceptual framework for assessing the performance of initially forceful constitutional courts. It then moves on to apply this framework to the Indonesian case. Assessed according to its capacity to support the consolidation of Indonesia’s democracy, the article argues, the Court’s power has indeed declined since its forceful start under Jimly. There are some signs, however, that the Court is on the rise again.
Schemes of property rights rectification are seldom influenced in the real world by a profound un... more Schemes of property rights rectification are seldom influenced in the real world by a profound understanding of property theory. Still, the political dynamics that drive such schemes are almost always informed by intuited understandings of the meaning and importance of property rights. And property theorists, for all their abstractions, often attempt to spell out the implications of their theories for real world problems. It would therefore be surprising if property theory had nothing to say about how schemes of property rights rectification ought to be implemented. It should also be possible to assess such schemes from the perspective of property theory, using competing theoretical understandings of property rights to explain the practical problems encountered, and, conversely, using practical problems to assess the relative merits of competing theoretical understandings. This chapter aims to construct a dialogue of this sort between Robert Nozick’s historical entitlement theory of property and the
Icon-international Journal of Constitutional Law, 2015
The purpose of this article is to use the conceptual logic underpinning the three main models of ... more The purpose of this article is to use the conceptual logic underpinning the three main models of US Supreme Court decision-making to construct a comparative typology of constitutional courts, and then to show how this typology may be used for further research. To this end, the article explains how the determinants of decision-making associated with the three models need to be reconceptualized for comparative purposes. The proposed approach generates four ideal-typical courts, each with its own characteristic decisionmaking mode. The shift from models to modes means that the typology cannot be used to predict circumstances in which the American models are likely to have explanatory power outside the US. But the search for those circumstances was in any event quixotic, given the particularity of the American experience. What the typology offers instead is a way of systematizing and building on the insights emerging from the comparative judicial politics literature.
This paper provides a comparative perspective on judicial review in Indonesia after the establish... more This paper provides a comparative perspective on judicial review in Indonesia after the establishment of the Constitutional Court in 2003. It starts by retelling the well-known story of the "transformation of American law" over the first half of the last century. As narrated by Morton Horwitz, that story is about how nineteenth-century industrialisation processes destabilised the premises of "Classical Legal Thought", and then about how the legal realist movement exploited the ensuing crisis to transform the way Americans think about law and its relationship to other social systems. Mining this story for generalisable concepts, the paper argues that the establishment of strong-form judicial review necessarily draws on and, in turn, influences prevailing conceptions of legal and political authority. These conceptions vary along a continuum, in the first case, from public confidence in law's autonomy to a conception of law as deeply immersed in politics, and, in the second case, from a conception of legitimate political authority as contingent on a fairly won democratic mandate to a conception of political authority as residing in the power holder's capacity to promote important social goals, such as national security or economic prosperity. Each of these variables may change independently of the other. In certain situations, however, they may also combine to form a relatively stable judicial review regime-a hegemonic legitimating ideology in which conceptions of legal and political authority lock into and mutually support each other. The fourth section uses this conceptual framework to assess the Indonesian Constitutional Court's approach to its mandate after 2003. Under its first two chief justices, the paper notes, the Court engaged in a concerted effort to build public understanding of its legitimate role in national politics. The Court's abrupt switch between its first Chief Justice, Jimly Asshiddiqie's legalist conception of
... Abstract Information. The dignity of comparative constitutional law. Journal Title: Acta Juri... more ... Abstract Information. The dignity of comparative constitutional law. Journal Title: Acta Juridica : Dignity, freedom and the post-apartheid legal order : the critical jurisprudence of Laurie Ackermann; Volume: Volume; Issue: Publication ...
... 25 See Catherine O'Regan 'The Prevention of Illegal Squatting Act'... more ... 25 See Catherine O'Regan 'The Prevention of Illegal Squatting Act' in Christina Murray & Catherine ' O'Regan (eds) No Place to Rest (1999) 162, 172-3. 26 See Johan Roos 'On illegal squatters and spoliation orders' (1988) 4 SAJHR 167 andjohan Roos 'On illegal squatters ...
The seriousness of the incorporation problem in interdisciplinary legal research, this article ar... more 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 multidisciplinary 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.
There have been two major periods of judge-driven constitutional transformation in Australia. The... more There have been two major periods of judge-driven constitutional transformation in Australia. The first spanned the High Court's successful transformation over the course of the last century of the strongly federalist 1901 Constitution into a weakly federalist one. The second took the form of what is generally thought to have been the less than fully realized 'Mason Court revolution'-the Court's attempt, from 1987-1995, to turn the Constitution into a device for expressing core Australian political values. What explains these different outcomes-why was the first transformation so successful and the second only partially achieved? This article proposes an answer to this question based on a generalisable account of the role of constitutional courts in processes of constitutional transformation. In short, the argument is that the seminal Engineers decision triggered a self-reinforcing trajectory of institutional development that led to a stable politico-legal equilibrium by the middle of the last century. The judges responsible for the second attempted transformation sought to break free of this equilibrium in order to respond to what they thought were pressing social needs. In the absence of a significant exogenous shock to the system, however, the equilibrium structured and constrained what they were able to do. * Professor of Law, University of New South Wales, Australia. I am indebted to my colleagues, Rosalind Dixon, Arthur Glass, Martin Krygier and Andrew Lynch, for very helpful comments on an earlier draft of this article.
One of the major fault-lines running through current thinking about the role of constitutional co... more One of the major fault-lines running through current thinking about the role of constitutional courts in democratic consolidation has to do with the question of judicial agency. For some commentators, constitutional courts have very little capacity to act independently of their political environment. It follows that, at most, a constitutional court may be able to amplify broader trends towards democratic consolidation. In the absence of those trends, however, a court is essentially powerless, either to add to the quality of democracy or to arrest a slide back into authoritarianism. For others, constitutional courts do possess at least some measure of agency. By strategically asserting their review powers, they can build their legitimacy and become a forceful check on anti-democratic tendencies within the political system. This paper tries to find a middle path between these two views: to correct the pessimistic view by injecting into it a sense of the social-systemic distinctiveness and thus the legitimating potential of law, and to correct the overoptimistic view by emphasising the real-world constraints under which constitutional courts work. After setting out this general approach, the paper explores its explanatory power in relation to the South African case.
ABSTRACT This article responds to Samuel Issacharoff’s lead essay in Volume 5 of the Constitution... more ABSTRACT This article responds to Samuel Issacharoff’s lead essay in Volume 5 of the Constitutional Court Review. Drawing on his earlier work on ‘democratic hedging’, Prof Issacharoff argues that constitutional courts that wish to prevent a dominant political party from using its electoral mandate to ‘lock up’ the democratic system should act forcefully, justifying its intervention in democratic politics with substantive theorisations of the democratic pathologies it is addressing. While finding many aspects of Prof Issacharoff’s analysis provocative, this article critiques his tendency to treat constitutional courts in new democracies as relatively autonomous from the political conditions they are trying to influence. Instead, it is argued, the role of constitutional courts in democratic consolidation is better theorised as a dynamic feedback loop, with each successive intervention both conditioned by, and in turn conditioning, the institutional and political context in which the court is working. On that approach, it is clear that the ideal democratic consolidation strategy open to a constitutional court will not always be boldly to enforce democratic rights on the back of a substantive theorisation of the pathologies it is addressing. Depending on the political and institutional context, a more cautious strategy may be required, where what is theorised is the Constitution’s conception of democracy, and whether this conception accommodates the democratic rights being asserted. Using this more context-sensitive theorisation, the article offers an alternative reading of the South African Constitutional Court’s democratic rights jurisprudence, focusing on five recent decisions in which the Court has begun to address some of the pathologies attendant on the African National Congress’s ongoing dominance of South African politics.
This article reviews the South African Constitutional Court's 2018 term. Against assessments ... more This article reviews the South African Constitutional Court's 2018 term. Against assessments that argue that the Court, and the judiciary in general in South Africa, have become immersed in 'lawfare', it argues that the Court's 2018 term is illustrative of an institution that is setting the constitutional parameters for democratic social transformation. Analysing twelve decisions covering a range of issues, from high-stakes questions of foreign policy to what may permissibly be said in the work place, the article finds little evidence for any of the three concerns typically associated with the lawfare critique, viz., the debilitation of democratic politics by the diversion of political struggles into the courts, the politicisation of the judiciary through loss of public confidence in its impartiality, and the abuse of the judicial process by political office bearers intent on avoiding accountability for their actions. In fact, in all three instances, the outcome is almost exactly the opposite of what the lawfare critique supposes. Rather than undermining democratic politics, the Court's decisions have been effective in reinforcing constitutional institutions established to support democracy. Instead of becoming politicised, the Court has successfully used legalist reasoning techniques and rhetorical devices to convert political questions into legal questions. And far from suffering the abuse of its processes, the Court has been able to use a range of remedial orders to sanction litigants who have lied to it or otherwise attempted to delay the onset of justice. In all these ways, the Court's approach to its mandate conforms to a progressive liberal conception of constitutional adjudication as providing the framework for, rather than displacing, democratically driven social change.
Page 1. CONSTITUTIONAL PROTECTION OF PROPERTY AND LAND REFORM Theunis Roux* CONSTITUTIONAL DEVELO... more Page 1. CONSTITUTIONAL PROTECTION OF PROPERTY AND LAND REFORM Theunis Roux* CONSTITUTIONAL DEVELOPMENTS CASE LAW In the year under review three different High Courts had occasion to interpret ...
The Indonesian Constitutional Court’s surprisingly early and forceful assertion of its veto role ... more The Indonesian Constitutional Court’s surprisingly early and forceful assertion of its veto role in national politics has attracted a fair amount of academic attention. Contributions to date have emphasised three main explanatory factors: the charismatic leadership provided by the Court’s first Chief Justice, Jimly Asshiddiqie; Indonesia’s fragmented political party system; and the judges’ preparedness boldly to assert the Court’s powers in a way that built its public support. But is the Court still as powerful in its second decade as it was in its first? Two incidents in particular suggest that the Court’s strength may be declining: the attempted legislative curtailment of the Court’s mandate in 2011, and the resignation in 2013 of its third Chief Justice, Ali Mochtar, following his arrest on charges of corruption. While neither of these events has as yet resulted in any permanent change to the Court’s jurisdiction and powers, there is a sense that the Court is in trouble – that its heyday has passed and that it is less influential than it used to be. The purpose of this article is to evaluate this claim. It starts by developing a conceptual framework for assessing the performance of initially forceful constitutional courts. It then moves on to apply this framework to the Indonesian case. Assessed according to its capacity to support the consolidation of Indonesia’s democracy, the article argues, the Court’s power has indeed declined since its forceful start under Jimly. There are some signs, however, that the Court is on the rise again.
Schemes of property rights rectification are seldom influenced in the real world by a profound un... more Schemes of property rights rectification are seldom influenced in the real world by a profound understanding of property theory. Still, the political dynamics that drive such schemes are almost always informed by intuited understandings of the meaning and importance of property rights. And property theorists, for all their abstractions, often attempt to spell out the implications of their theories for real world problems. It would therefore be surprising if property theory had nothing to say about how schemes of property rights rectification ought to be implemented. It should also be possible to assess such schemes from the perspective of property theory, using competing theoretical understandings of property rights to explain the practical problems encountered, and, conversely, using practical problems to assess the relative merits of competing theoretical understandings. This chapter aims to construct a dialogue of this sort between Robert Nozick’s historical entitlement theory of property and the
Icon-international Journal of Constitutional Law, 2015
The purpose of this article is to use the conceptual logic underpinning the three main models of ... more The purpose of this article is to use the conceptual logic underpinning the three main models of US Supreme Court decision-making to construct a comparative typology of constitutional courts, and then to show how this typology may be used for further research. To this end, the article explains how the determinants of decision-making associated with the three models need to be reconceptualized for comparative purposes. The proposed approach generates four ideal-typical courts, each with its own characteristic decisionmaking mode. The shift from models to modes means that the typology cannot be used to predict circumstances in which the American models are likely to have explanatory power outside the US. But the search for those circumstances was in any event quixotic, given the particularity of the American experience. What the typology offers instead is a way of systematizing and building on the insights emerging from the comparative judicial politics literature.
This paper provides a comparative perspective on judicial review in Indonesia after the establish... more This paper provides a comparative perspective on judicial review in Indonesia after the establishment of the Constitutional Court in 2003. It starts by retelling the well-known story of the "transformation of American law" over the first half of the last century. As narrated by Morton Horwitz, that story is about how nineteenth-century industrialisation processes destabilised the premises of "Classical Legal Thought", and then about how the legal realist movement exploited the ensuing crisis to transform the way Americans think about law and its relationship to other social systems. Mining this story for generalisable concepts, the paper argues that the establishment of strong-form judicial review necessarily draws on and, in turn, influences prevailing conceptions of legal and political authority. These conceptions vary along a continuum, in the first case, from public confidence in law's autonomy to a conception of law as deeply immersed in politics, and, in the second case, from a conception of legitimate political authority as contingent on a fairly won democratic mandate to a conception of political authority as residing in the power holder's capacity to promote important social goals, such as national security or economic prosperity. Each of these variables may change independently of the other. In certain situations, however, they may also combine to form a relatively stable judicial review regime-a hegemonic legitimating ideology in which conceptions of legal and political authority lock into and mutually support each other. The fourth section uses this conceptual framework to assess the Indonesian Constitutional Court's approach to its mandate after 2003. Under its first two chief justices, the paper notes, the Court engaged in a concerted effort to build public understanding of its legitimate role in national politics. The Court's abrupt switch between its first Chief Justice, Jimly Asshiddiqie's legalist conception of
... Abstract Information. The dignity of comparative constitutional law. Journal Title: Acta Juri... more ... Abstract Information. The dignity of comparative constitutional law. Journal Title: Acta Juridica : Dignity, freedom and the post-apartheid legal order : the critical jurisprudence of Laurie Ackermann; Volume: Volume; Issue: Publication ...
... 25 See Catherine O'Regan 'The Prevention of Illegal Squatting Act'... more ... 25 See Catherine O'Regan 'The Prevention of Illegal Squatting Act' in Christina Murray & Catherine ' O'Regan (eds) No Place to Rest (1999) 162, 172-3. 26 See Johan Roos 'On illegal squatters and spoliation orders' (1988) 4 SAJHR 167 andjohan Roos 'On illegal squatters ...
The seriousness of the incorporation problem in interdisciplinary legal research, this article ar... more 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 multidisciplinary 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.
There have been two major periods of judge-driven constitutional transformation in Australia. The... more There have been two major periods of judge-driven constitutional transformation in Australia. The first spanned the High Court's successful transformation over the course of the last century of the strongly federalist 1901 Constitution into a weakly federalist one. The second took the form of what is generally thought to have been the less than fully realized 'Mason Court revolution'-the Court's attempt, from 1987-1995, to turn the Constitution into a device for expressing core Australian political values. What explains these different outcomes-why was the first transformation so successful and the second only partially achieved? This article proposes an answer to this question based on a generalisable account of the role of constitutional courts in processes of constitutional transformation. In short, the argument is that the seminal Engineers decision triggered a self-reinforcing trajectory of institutional development that led to a stable politico-legal equilibrium by the middle of the last century. The judges responsible for the second attempted transformation sought to break free of this equilibrium in order to respond to what they thought were pressing social needs. In the absence of a significant exogenous shock to the system, however, the equilibrium structured and constrained what they were able to do. * Professor of Law, University of New South Wales, Australia. I am indebted to my colleagues, Rosalind Dixon, Arthur Glass, Martin Krygier and Andrew Lynch, for very helpful comments on an earlier draft of this article.
One of the major fault-lines running through current thinking about the role of constitutional co... more One of the major fault-lines running through current thinking about the role of constitutional courts in democratic consolidation has to do with the question of judicial agency. For some commentators, constitutional courts have very little capacity to act independently of their political environment. It follows that, at most, a constitutional court may be able to amplify broader trends towards democratic consolidation. In the absence of those trends, however, a court is essentially powerless, either to add to the quality of democracy or to arrest a slide back into authoritarianism. For others, constitutional courts do possess at least some measure of agency. By strategically asserting their review powers, they can build their legitimacy and become a forceful check on anti-democratic tendencies within the political system. This paper tries to find a middle path between these two views: to correct the pessimistic view by injecting into it a sense of the social-systemic distinctiveness and thus the legitimating potential of law, and to correct the overoptimistic view by emphasising the real-world constraints under which constitutional courts work. After setting out this general approach, the paper explores its explanatory power in relation to the South African case.
ABSTRACT This article responds to Samuel Issacharoff’s lead essay in Volume 5 of the Constitution... more ABSTRACT This article responds to Samuel Issacharoff’s lead essay in Volume 5 of the Constitutional Court Review. Drawing on his earlier work on ‘democratic hedging’, Prof Issacharoff argues that constitutional courts that wish to prevent a dominant political party from using its electoral mandate to ‘lock up’ the democratic system should act forcefully, justifying its intervention in democratic politics with substantive theorisations of the democratic pathologies it is addressing. While finding many aspects of Prof Issacharoff’s analysis provocative, this article critiques his tendency to treat constitutional courts in new democracies as relatively autonomous from the political conditions they are trying to influence. Instead, it is argued, the role of constitutional courts in democratic consolidation is better theorised as a dynamic feedback loop, with each successive intervention both conditioned by, and in turn conditioning, the institutional and political context in which the court is working. On that approach, it is clear that the ideal democratic consolidation strategy open to a constitutional court will not always be boldly to enforce democratic rights on the back of a substantive theorisation of the pathologies it is addressing. Depending on the political and institutional context, a more cautious strategy may be required, where what is theorised is the Constitution’s conception of democracy, and whether this conception accommodates the democratic rights being asserted. Using this more context-sensitive theorisation, the article offers an alternative reading of the South African Constitutional Court’s democratic rights jurisprudence, focusing on five recent decisions in which the Court has begun to address some of the pathologies attendant on the African National Congress’s ongoing dominance of South African politics.
This article reviews the South African Constitutional Court's 2018 term. Against assessments ... more This article reviews the South African Constitutional Court's 2018 term. Against assessments that argue that the Court, and the judiciary in general in South Africa, have become immersed in 'lawfare', it argues that the Court's 2018 term is illustrative of an institution that is setting the constitutional parameters for democratic social transformation. Analysing twelve decisions covering a range of issues, from high-stakes questions of foreign policy to what may permissibly be said in the work place, the article finds little evidence for any of the three concerns typically associated with the lawfare critique, viz., the debilitation of democratic politics by the diversion of political struggles into the courts, the politicisation of the judiciary through loss of public confidence in its impartiality, and the abuse of the judicial process by political office bearers intent on avoiding accountability for their actions. In fact, in all three instances, the outcome is almost exactly the opposite of what the lawfare critique supposes. Rather than undermining democratic politics, the Court's decisions have been effective in reinforcing constitutional institutions established to support democracy. Instead of becoming politicised, the Court has successfully used legalist reasoning techniques and rhetorical devices to convert political questions into legal questions. And far from suffering the abuse of its processes, the Court has been able to use a range of remedial orders to sanction litigants who have lied to it or otherwise attempted to delay the onset of justice. In all these ways, the Court's approach to its mandate conforms to a progressive liberal conception of constitutional adjudication as providing the framework for, rather than displacing, democratically driven social change.
This paper examines leading cases decided in the South African Constitutional Court's 2018 term. ... more This paper examines leading cases decided in the South African Constitutional Court's 2018 term. Rather than providing evidence of 'lawfare', the paper argues, the cases suggest that the Court is continuing to lay down the ground rules for democratic social transformation.
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