Second Story
“We have the über-coolest, way most liberal constitution in the
world”.
Introduction
 Our Julius Dilemma
 Relation between society and constitution: façade or
“lag”?
Art. 9 (1-3) Equality
Lesbians subjected to "corrective
rape" in South Africa
Lesbians living in South Africa are being subjected to
"corrective rape" and severe violence by men trying to
"cure" them of their sexual orientation, human rights
groups have said. The report called for South Africa's criminal
justice system to recognise the rapes as hate crimes in an
attempt to force police to take action over the rising tide of
violence.
Art. 10 Dignity
Art. 26 Housing
Art. 11. The right to life
We are all Andries Tatane
Article: 12: Freedom and security of the person
Attitudes/reality
vs.
Corrective rape
Poverty
Lack of dignity
Hate speech
Service-delivery
Corruption
Elite conspicuous consumption
The arms deal
Rights
equality
housing
dignity
equality
socio-economic rights
Difference?
1. Façade
2. Lag?
 Ignorance
 Tradition
 History
 Resources
3. Violation?
 Letter of the law
 Spirit (ethos) of the law
4. We need theory
Background concepts
1. State
2. Government
3. Il/legitimate violence
4. External and internal sovereignty
5. Limitation of violence?
6. Constitutionalism: history – Greek city states
1. State
 Territorially bound political entity
 consisting of institutions, for
1. rule making;
2. rule interpretation and
3. rule enforcement
 aimed at defending internal and external sovereignty
2. Government
 makes law (legislation), implements law (execution) and
interprets law (judiciary).
 Relation to state:
1. means through which the state manifests its power
2. Body: brains; bus: driver
3. Legitimacy
1. Power: an ability; Authority: a right
2. Legitimacy: transforms power into authority.
3. Legitimate violence: “acceptance of coercion as right”
[Coercion vs. force?]
4. Summary:
 threat of violence - calls state into existence and
legitimises its existence, while
 licensing it to use violence in defense of internal order
and external sovereignty,
 thereby granting it a monopoly on violence.
4. Sovereignty:
 Internal sovereignty
 External sovereignty
 Is externally sovereign when internal sovereign
(legitimate)
 The right and ability to exercise absolute power because it
is above all other associations and groups.
 Characteristics of sovereignty:
i. Highest/ultimate power
ii. In perpetuity
iii. Indivisible
iv. Tolerates no restrictions/conditions
v. Maker and enforces of rules
5. Violence
1. How much violence is legitimate?
2. Needed: limitation of state’s exercise of violence.
3. How? Constitutionalism
6. Constitution:
 Meta-rules for ruling: laws about laws.
 Establish/limit duties, powers, function of state institutions
and relations:
1. horizontally, between various state institutions and
2. vertically, between the state and individual (through
a Bill of Rights).
Definition: “Constitutionalism is the technique of establishing
and maintaining effective restraints on political and government
action”
Origins: (see Vincent, 1987: 77-82).
1. Ancient as Gree city states
2. Vincent – pp78-82 (points 1-8)
3. Continuation: research Magna Carta
7. Kinds of Constitutions
1. Codified: Rules contained in “The Constitution”.
2. Uncodified: common law, conventions, works of authority
formulate rules.
8. Bill of Rights
Legal document specifying rights, privileges and liberties of the
individual.

Entrenched: higher/constitutional law;
part of Constitution.

A statutory bill of rights: status of law; changed
through normal legislation. Also: “statute of
rights”.
Aims of constitutionalism
 Limitation/diversification of authority.
 State guardian of the constitutional order.
Kinds of limitations:
 Vincent (1987, 92-114): three classes of
constitutional devices for limiting authority.
1. Historical/legal limitations
2. Institutional devices
3. Moral and philosophical limitations
1. Historical/legal limitations.
 Ancient constitutions: eg. Magna Carta
 Customary law: Basic customs of a people.
Conservative.
 Conventions: “a binding rule of behaviour accepted
as obligatory by those concerned in the work of the
constitution”
 Written document: Solves problem of flexibility
A closer look at “conventions”:
1. Vincent – p95:
 Description
 Definition
 Legal status
 Function
2. Other examples:
 institutional culture
 ethos, [OED Online: “the characteristic spirit of a culture,
era, or community as manifested in its attitudes and
aspirations,”]
 law and the spirit of the law.
3. Conventions and the “spirit of the law”: Praeg (2000)
4. Story, document, incident.
5. Application to our Julius Dilemma:
 Breaking the law or violating the spirit of the law?
 Law: see Art. 16, Bill of Rights (hate speech, causality)
 Spirit of the law: Omar and Yengeni’s appeal to “struggle
tradition” (Praeg 2000:125).
 Struggle songs in the context of state (il)legitimacy.
2. Institutional limitations
 Mixed/balanced constitution: Advantages of all,
inconveniences of none.
 Separation of powers: legislative (makes laws: rulemaking power), judiciary (interprets laws: rule-settling
power) and executive (enforces the law: rule-enforcing
power).
 Checks and balances: See Constitution
3. Moral and philosophical limitations:

Natural law: Natural law and positive law. Source: deity or
objective reasoning powers

Natural and human rights: Derived from
natural law/ “human rights”

Civil society: Public and private realms.
“That realm that consists of autonomous groups and
associations independent of government and organised by
individuals in pursuit of their own interests”.
Conclusion

Constitutional States vs states with
constitution.