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My tea party, your mob, our social contract : freedom of assembly and the constitutional right to rebellion in Garvis v SATAWU (Minister for Safety & Security, third party) 2010 (6) SA 280 (WCC)

01 Jan 2011-South African Journal on Human Rights (Juta Law Publishing (Historical content up to Sept 2015))-Vol. 27, Iss: 2, pp 346-353
TL;DR: The United States of America Declaration of Independence, 4 July 1776 as discussed by the authors states that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Abstract: When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. The United States of America Declaration of Independence, 4 July 1776
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01 Jul 2013
TL;DR: Experimental constitutionalism as discussed by the authors has been used in the South African Constitutional Court as a foundation for the development of a legal system that allows individuals to exercise relatively unfettered control over decisions about the intimate relationships and the various practices deemed critical to their self-understanding.
Abstract: The way the vast majority of us think about the self, consciousness and free will is incorrect – dramatically out of step with what the majority of neuroscientists, cognitive psychologists scientists and analytic philosophers have to say about those subjects. One consequence of these erroneous views is that the manner in which the majority of us understand ‘freedom’ – as a metaphysical term and as a political concept -is sharply at odds with how things actually are. We replicate similar kinds of errors when we think about how various forms of human association are constructed and how change actually occurs within such associations. Once again, epistemological fallacies with regard to social theory have the consequence of leading us to attribute far greater ‘freedom’ to groups than they actually possess. This second misattribution of autonomy results in institutional political arrangements and constitutional doctrines at odds with what we know about the human condition. As things stand, the various models of political theory with which the South African Constitutional Court operates rest upon a belief that the rights and freedoms enshrined in the Final Constitution should enable individuals to exercise relatively unfettered control over decisions about the intimate relationships and the various practices deemed critical to their self-understanding. However, individual autonomy as a foundation for constitutional theory overemphasizes dramatically the actual space for self-defining choices. In truth, our experience of personhood, of self-consciousness, is a function of a complex set of narratives over which we exercise little in the way of (self) control. The involuntary and arational nature of identity formation – at the level of both the individual and the social -requires a constitutional theory that supplants the model of a rational individual moral agent which undergirds much of our current jurisprudence with a vision of the self that is more appropriately located within and determined by the associations to which we all belong. Despite the involuntary and arational nature of identity formation, we can live within communities that determine the greater part of the meaning we make, and still remain committed to the possibility of significant change (for the better) within those communities. This thesis then goes on to explain how a commitment to experimentalism in the political domain, when married to a robust conception of basic entitlements and citizenship, services human flourishing. (To expand the conditions for flourishing, however, is not to make us metaphysically ‘free’ to ‘will’ our actions: a commitment to flourishing reflects an attempt to create an environment in which all inhabitants of South Africa have the opportunity to live lives worth valuing.) Experimental constitutionalism dovetails with a very modest, naturalized account of flourishing because both accounts (1) take the radical givenness of existing constitutive attachments seriously; (2) recognize the boundedness of individual and collective rationality; and (3) describe various kinds of feedback mechanisms that allow for error correction and the enhancement of the conditions of being. Experimental constitutionalism, in particular, enables more citizens to see what ‘works’ and what doesn’t – both with respect to the means and the ends of our existence. Experimental constitutionalism offers the promise of improving the conditions for being by suggesting a range of alterations in constitutional doctrine and a host of changes in the manner in which many political institutions operate. In South Africa, the innovations associated with experimental constitutional design embrace: (1) a doctrine of constitutional supremacy that maintains a meaningful equilibrium with a doctrine of separation of powers, and thus sets relatively clear guidelines for how authority for constitutional interpretation might best be shared by the judiciary, the legislature, the executive and non-state-actors; (2) the use of various standard judicial mechanisms – such as cost orders, court procedures, amici and intervenors, expanded constitutional jurisdiction and structural injunctions – to create bubbles of participatory democracy better able (than courts or legislatures) to resolve various kinds of polycentric conflict; (3) an approach to limitations analysis that provides a better process than ‘balancing’ for experimentalist adjudication; and (4) greater roles for Chapter 9 Institutions with respect to investigation, information-sharing and norm-setting; and (5) a principle of democracy that invites public participation in law-making that will both elicit better information about which government policies work best and effect widespread reflection about the meaning of those constitutional norms that govern our lives. The thesis then (a) mines the brief historical record of two important policy areas – Housing and Education – to show how the principles of experimental constitutionalism have already been put to work and (b) re-examines six Constitutional Court cases to demonstrate how the dual commitment to experimental constitutionalism and flourishing might generate more optimal outcomes.

40 citations

Dissertation
01 Apr 2019

8 citations


Cites background from "My tea party, your mob, our social ..."

  • ...Representative democracy can be defined as a system of government where “the people” elect representatives through regular elections and 67 Woolman (2011) SAJHR 346-353....

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  • ...153 Woolman (2011) SAJHR 349....

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