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On 13 December 2019, South Africa’s Parliament published a notice inviting public comment on a proposed amendment to that country’s celebrated 1996 Constitution.
1 In seven tersely worded pages, the explanatory memorandum sets out the need for a change to section 25 – the property clause. If adopted,2 the amendment would add a provision stipulating that a court, ‘where land and any improvements thereon are expropriated for the purposes of land reform’, may determine that the compensation payable is ‘nil’. In addition, Parliament, rather than the judiciary, would be given the authority to specify the circumstances in which this kind of determination could be made.
This chapter draws on Daniel S. Lev’s work on Indonesian law and legal culture to assess the Constitutional Court’s role in the reformasi. One of the central themes running though Lev’s work, the chapter notes, was the idea that law’s claim to authority as an autonomous body of norms is invariably a function of politics – of the middle class’s need to promote this quintessentially liberal idea of law to further its own interests. On the other hand, Lev also recognised that societies generally prosper where there is public confidence in precisely this conception of law. This tension in Lev’s work may be resolved, the chapter argues, if law’s autonomy from politics is seen as being, not an empirically provable fact, but a constitutional-cultural ideology that may take hold under certain conditions. The third section uses this modified Levian conceptual framework to examine the Indonesian Constitutional Court’s role in promoting the rule of law after the constitutional reforms of 1999–2002. While the Court has made admirable strides, the chapter argues, its vacillation between a legalist and an instrumentalist conception of law has inhibited the consolidation of a stable societal understanding of its legitimate role in tempering the exercise of political power. The chapter conclusions on this score, despite differences of conceptualisation, demonstrate how vitally important Lev’s work still is to the fate of the Indonesian ‘law-state’.
Comparative scholarship on judicial review has paid a lot of attention to the causal impact of politics on judicial decision-making. However, the slower-moving, macro-social process through which judicial review influences societal conceptions of the law/politics relation is less well understood. Drawing on the political science literature on institutional change, The Politico-Legal Dynamics of Judicial Review tests a typological theory of the evolution of judicial review regimes - complexes of legitimating ideas about the law/politics relation. The theory posits that such regimes tend to conform to one of four main types - democratic or authoritarian legalism, or democratic or authoritarian instrumentalism. Through case studies of Australia, India, and Zimbabwe, and a comparative chapter analyzing ten additional societies, the book then explores how actually-existing judicial review regimes transition between these types. This process of ideational development, Roux concludes, is distinct both from the everyday business of constitutional politics and from changes to the formal constitution.