1st Edition
Lawfare and Judicial Legitimacy The Judicialisation of Politics in the case of South Africa
Lawfare is a complex and evolving concept with many permutations. It is a term that is used to describe both a judicialisation of politics where the Constitutional Court is called upon to uphold constitutional responsibilities, compensating for institutional failures in the broader democratic space, and instances where there is abuse of the legal process to escape accountability. When the court is dragged into politics, it forces an examination of the legitimate scope of judicial review. 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. Through an in-depth study of judicial legitimacy, the book seeks to provide an overarching theoretical justification for the dangers that inhere in lawfare. It analyses the potential costs of both judicial statesmanship and strategies of deference and avoidance when trying to navigate the Court safely through the era of lawfare. South Africa offers an interesting crucible within which to observe an unfolding global trend. Strengthened by its comparative focus, the implications of lawfare presented in this book transcend the South African context and are applicable to other jurisdictions in the world. The book will be of interest to researchers, academics and practitioners working in the areas of Constitutional Law and Politics.
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
Biography
Kate Dent received her doctorate from the School of Law, University of Cape Town, South Africa.
'The judicialisation of politics carries a risk of weakening the independence of, and public respect for, the judiciary. This book contains a clear and accessible exposition of this important topic. It deserves the urgent attention of all interested in politics and justice in South Africa - both lawyers and laypeople.'
Richard Goldstone, Former Justice of the Constitutional Court of South Africa
'In this work the author conducts the first major analysis of the current "weaponization" of the judiciary. Though her analysis is largely focused on the South African judicial system, Dent applies a comparative approach that is very helpful to readers in the United State, the United Kingdom and elsewhere. In each of these systems political questions are increasingly being presented to judges and political pressures on courts as institutions for resolving extremely difficult political impasse are escalating. The book is highly recommended reading for jurists, lawyers and policy makers.'
Lawrence Baxter, Distinguished Professor Emeritus, Duke University'
'Kate Dent’s analysis of lawfare in the judicial setting is extraordinarily original and constitutes an extremely important contribution to the scholarship of this phenomena. Though her discussion is set in the context of the South African judiciary, it has obvious implications for other jurisdictions. I highly recommend her book to anyone wanting to understand how law might be employed in the 21st century.'
Charles J. Dunlap, Jr., Major General, USAF (Ret.), Executive Director, Center on Law, Ethics and National Security, and Professor of the Practice of Law, Duke University School of Law
