The significance of a philosophical approach in constitutional adjudication with reference to the Prince case

Abstract

The entrenchment of a Bill of Rights in a supreme Constitution in South Africa means that constitutionalism will become central in a new emerging jurisprudence.  The constitutional requirement that the courts promote “the values which underlie an open and democratic society based on freedom and equality² implies that the interpretive task will be radically different from what it was under the doctrine of parliamentary sovereignty.  The duty imposed on the courts by section 39(1)(a) and 7(1) will compel them to make value choices and to make those values explicit through clear and transparent articulation.