Theory, practice and the legal enterprise

Bilchitz, D. ORCID: https://orcid.org/0000-0001-6195-675X and Tuovinen, J. (2010) Theory, practice and the legal enterprise. Southern African Public Law, 25 (2). pp. 544-566. ISSN 2219-6412

Abstract/Summary

The role of theory in law is a topic that has generated much heated debate, particularly in the United States. In South Africa, this debate has largely taken the form of academic exchanges concerning the virtues of judicial minimalism: this involves the idea that in adjudicating cases, judges should confine themselves to providing reasons that are narrowly tailored to the facts before them and are not to go beyond what is necessary to justify that decision. This debate has taken place in the context of criticisms that have been lodged against the Constitutional Court for avoiding giving content to fundamental rights and its failure to provide more detailed and deeper justifications for its decisions.