Contending interpretations of the rule of law in South Africa

[摘要] ENGLISH ABSTRACT: The following study examines whether there are contending interpretations of the rule of lawpresent within the South African democracy. The study proposes that the rule of law formspart of the societal understanding of democracy and everyday life. Rule of law is defined interms of mental models which influence how stakeholders conceive and define institutions.Rule of law is more than a mere institutional guarantee or set of rules - rule of law isunderstood as a component of a specific culture of understanding. It is shown thatconceptions of rule of law have a long history in western society and have been influenced byboth liberal and social ideals. Contemporary conceptions of the rule of law are tightly boundwith specific notions of liberal democracy.It is hypothesised that there are distinctly identifiable opinions, beliefs and views of the ruleof law present in South African democracy, and that these can be systematically described atthe hand of a conceptual typology. The conceptual typology developed, identifies twocontending interpretations of the rule of law, namely liberal and social rule of law. Liberalrule of law emphasises the status of the individual, moral plurality and the creation andmaintenance of a rule-based society of the future. In contrast, social rule of law placesemphasis on the status of the community, a single communally defined conception of themoral good and places greater emphasis on righting past injustices.Other publications that address the themes of democracy and the rule of law in South Africaare also examined in order to determine whether there is congruence between the conceptualtypology developed in this study and other works. It is found that the conceptual typology iscongruent with other works that depict the African National Congress's conception ofdemocracy, equality and liberty. These congruencies validate and strengthen the conceptualtypology developed in this study.The conceptual typology is subsequently applied to a specific court case, the AfriForum vMalema hate speech case. The conceptual typology is found to be sufficiently accurate inanalysing contending beliefs associated with the rule of law as expressed in this court caseand identifies the African National Congress's conception of the rule of law as falling underthe social rule of law and AfriForum's conception as aligning to the liberal rule of law.It is concluded that the conceptual typology can be empirically validated at the hand of theselected case. The conceptual typology is therefore validated with other works (conceptually)and with a specific case (empirically). It is concluded that the conceptual typology provides aclear, robust, concise and comprehensive analytical description of values and beliefsassociated with the rule of law in South Africa.

[发布机构] Stellenbosch University