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This chapter focuses on legalism, that is, the type of thought that uses general rules and abstract categories, and the specificity of the legal reasoning that produces it. Discussions focus on law and custom, rules and categories, as well as jurisprudence and pluralism. Starting from this central position of traditional leaders in the political debate, the argument of this chapter is as follows. It was because of the specific political climate of post-apartheid South Africa that traditional leaders were able to be at the centre of the discussions that affected them, but also the 13 million or more people considered their “subjects”. This political climate has been mitigated not only by the actors – political parties, traditional leaders, NGOs, government agencies – involved in the process, but also by broader national and international conditions. With the fact that South Africa has a cultural diversity that must be “recognized” as a central precondition in the political debate, it was essentially about the content of culture, customs and traditions. And because traditional leaders played a central role in these debates, they had the “power of definition”, effectively monopolizing knowledge of rural conditions, the popularity of traditional authority, and the character of customary law. Thus, it was the kind of culture, custom, and tradition that was supposed to promote the “austerity of tabular legalism” (d`Engelbrenner-Kolff, 2001:271) that was at the heart of the struggle for post-apartheid power, with chances heavily skewed in favor of traditional leaders. There have been occasional cases where the Supreme Court has garnered a liberal majority to overturn a precedent that treats same-sex relationships as a crime, recognizing equal marriage rights for same-sex couples, and supporting President Barack Obama`s health care reform. But time and again, the Court`s work has been marred by a lack of collegiality, exemplified by the legal sarcasm of the late Justice Antonin Scalia and a literal and restrictive interpretation of the Bill of Rights based on the “original intent” of the Founding Fathers. Instead of a generous interpretation of freedom, the court adopted what one British jurist called “the austerity of tabular legalism.” “These precursors. call for a generous interpretation that avoids the so-called “austerity of tabular legalism” and is likely to give individuals the full measure of these fundamental rights and freedoms.

The language used and the traditions and customs that have given importance to that language must be respected. It is entirely consistent and with the recognition that the rules of interpretation may apply, to take as the starting point of the interpretive process the recognition of the character and origin of the instrument and to be guided by the principles of the full recognition and effect of these fundamental rights and freedoms by means of a declaration with which the Constitution begins. The Constitution of India is a supreme law that represents the will of the people and is a mechanism under which laws are shaped. In interpreting the Constitution, the court must ensure that it is a documentation of the founding face of a nation and the basic instructions for its fulfillment, while in the interpretation of a law, its essence and substance must be examined and the duty of the court is to determine the intention of the legislature. The general principle of interpretation and interpretation of the law is that a court presumes its constitutionality and prefers an interpretation in favour of the competence of Parliament. It is only if two meanings are derived, one leading to the conclusion of the legislature as to the factual result and the other to the manifestation of absurdity or futility or injustice or anomaly, that the Court should adopt the second view. [3] Karl Marx and F. Engels.

“The eighteenth Brumaire of Louis Bonaparte”, in a selection of works. Moskau: Verlag, 1962, p. 1. At a time when the political system in the US (and UK) has been skewed by populism and demagoguery, the Supreme Court could once again provide a moral compass for legislators and judges at home and abroad. That`s why the outcome of this presidential election is so important to people like me – people who are friends and admirers of the United States and who are optimistic about their future. The decisions of the conservative majority have limited the positive measures taken to combat past discrimination. They interpreted the First Amendment as removing limits on campaign finance in the name of a distorted concept of what free speech means in a democratic society. They retained the death penalty (which was abolished throughout Europe) and did not support reasonable measures to tackle the appalling problems of gun crime. [3] JUGAL KISHORE DHOOT & ORS c. STATE & ORS – CW Case No.

4733 of 2004 [2007] INRJHC 5718 (7. Dezember 2007) URL: www.commonlii.org/in/cases/INRJHC/2007/5718.html Lord Anthony Lester of Herne Hill QC ist Barrister und Mitglied der Liberaldemokraten im britischen House of Lords.

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