Between apology and utopia: The Constitutional Court and public opinion

In: The South African journal of African affairs, Band 18, Heft 1, S. 1-40

Abstract

This article focuses on controversial constitutional cases involving "national moral issues" and considers the manner in which the South African Constitutional Court has dealt with the issue of public opinion. While it is generally accepted that the Court has a valid role to play as a guardian of minority rights as against positive morality (its "official position"), the question remains of how to deal with the fact that the Court's decision sometimes lead to a rejection of public opinion. The article argues that it is in the Court's interest to adopt a role which openly engages with South African citizens in those cases where it rejects public opinion in favour of upholding minority rights. In order to evaluate the Court's record insofar as this open engagement is concerned, the article considers three Constitutional Court cases which have involved national moral issues. The author shows that the Court has on the whole delivered judgments which pursuasively engage with public opinion (through the use of Rawlsian "public reason"), and which attempt to edify the South African public about their ethical identity under the Constitution. In so doing, it is argued that the Court has managed to tread a delicate path between the dangers of apology (being seen as deferent to public opinion) and utopia (losing legitimacy for failing to engage with public opinion). The author also argues that while the Court's educative role needs to be supported by the media and other institutions, the Court can itself adopt certain measures through which it will enhance its teaching role within South African public life. (S Afr J Hum Rights/DÜI)