Abstract

Critics often say that certain aspects of South African law or of the South African societal structure constitute infringements of the rule of law. One is left by these critics with a general notion that the rule of law is some sort of Sollensprinzip applying to positive law, i.e. a criterion for the evaluation of legal rules and systems, and that mainly those measures which are being employed in South Africa to substantiate the policy of separate development in the field of race relations and most of the provisions for safeguarding state security are in conflict with its principles. As such this mystical concept is being used to bring the basic structure of the South African way of living into disrepute; and the urgency of the situation necessitates all who are compelled to plan their future in our sub-continent to take careful note of its exact meaning, function and contents. A philosophical survey of contemporary society within the context of the South African situation will therefore be incomplete if it were to omit an analysis of the rule of law.

Highlights

  • The m ysteries of the rule of law have intrigued law yers and philosophers for alm ost a hundred years

  • In doing so I w ill bear in m ind the relevancy which such aconcept m ay have in view of the South A frican societal structure

  • The te rm “ru le of law ” w as in tro d u ced and o rig in a lly defined by A V Dicey d u rin g the second h alf of the last century to denote the fundam ental principles of B ritish constitutional law; and, as pointed out byDCM Yardley, “... any m odem discussion of the subject m ust begin w ith th e th e o ry of P ro fe s so r A V D ic e y . . . , ” ‘) b ecau se, the m eaning of “rule of law ” has undergone m any changes since Dicey, “. .. the influence of Dicey re m a in sareal fo rce.” 2)

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Summary

THE UNRULY HORSE

REFLECTIONS ON THE RULE OF LAW “The truth is that the rule of law is apt to be an unruly horse. One is left by these critics with a general notion that the rule of law is some sort of S ollen sp rin zip applying to p ositive law, i e a cri­ terion for the evaluation of legal rules and system s, and that m ainly those m easures which are being em ployed in South Africa to substantiate the policy of separate deve­ lopment in the field of race relations and m ost of the pro­ v ision s for safeguarding state security are in conflict with its principles As such this m ystical concept is being used to bring the basic structure of the South Afri­ can way of livin g into disrepute; and the urgency of the situation necessitates all who are com pelled to plan their future in our sub-continent to take careful note of its exact m eaning, function and contents. In dealing w ith other expositions of the rule of law, I can understandably only refer to a few of the m ost im por­ tant interpretations

DICEY AND THE RULE OF LAW
RESTATEMENT OF THE RULE OF LAW BY WADE AND PHILLIPS
OTHER STANDARD INTERPRETATIONS OF THE RULE OF LAW
THE RULE OF LAW A ND HUMAN RIGHTS
SOUTH AFRICAN INTERPRETATIONS OF THE RULE OF LAW
CALVINISM AND THE RULE OF LAW
CONCLUDING REMARKS
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