Lawfare and Judicial Legitimacy

Kate Dent received her doctorate from the School of Law, University of Cape Town, South Africa.

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