Developments in Comparative Public Law in South Africa

Abstract

In South Africa, the study and practice of law involve comparing different legal systems due to the complex historical blend of Roman-Dutch, English, indigenous, and religious laws. Constitutional supremacy since 1994 has amplified the importance of comparative legal method. The 1996 Constitution itself drew from various legal systems, endorsing the use of foreign law in interpreting rights. Comparative legal method is vital across all legal domains, and has greatly grown in relevance in constitutional and administrative law following constitutionalisation. This contribution explores the use of comparative legal method in South African constitutional and administrative law. It uses Herwig Hofmann’s three categories of comparative frameworks, namely “law as category”, “law as source” and “law as variable”, to consider the continuity and discontinuity between historical reliance on comparative method in South Africa and comparative legislative and judicial practices under the Constitution in the areas of constitutional and administrative law.