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.
By:
Kate Dent
Imprint: Routledge
Country of Publication: United Kingdom
Dimensions:
Height: 234mm,
Width: 156mm,
Weight: 666g
ISBN: 9781032433349
ISBN 10: 1032433345
Series: Routledge Research in Public Law
Pages: 258
Publication Date: 28 July 2023
Audience:
College/higher education
,
Primary
Format: Hardback
Publisher's Status: Active
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
Kate Dent received her doctorate from the School of Law, University of Cape Town, South Africa.
Reviews for Lawfare and Judicial Legitimacy: The Judicialisation of Politics in the case of 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"
