Revisiting the Place of Preparatory Documents in the Interpretation of Transformative Constitutions

IF 0.4 Q3 LAW
C. Abungu
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引用次数: 1

Abstract

Abstract South Africa and Kenya are among some nations that have adopted what are referred to as ‘transformative constitutions’, with the aim of bringing about radical change that would repair the cumulatively deep fissures in their societies. In order to determine how to satisfactorily give these constitutions effect, judges may undertake to first understand the people’s past experiences and how that informed the constitutional provisions that were adopted. This will in turn allow them to grasp what sort of transformation the people sought. One of the sources by which to undertake such a task is preparatory documents. In this study, these are the materials detailing the people’s views on the then-prospective constitutional provisions and discussions during constitutional conferences. By reference to the United States courts as a case study, this article seeks to find out the use to which judges interpreting provisions in the Constitution of Kenya and the Constitution of South Africa put preparatory documents. It does so through an empirical examination of select Human Rights decisions in both jurisdictions. It eventually finds that the examination of preparatory documents need not necessarily be viewed as an exercise that will restrain a judge, or fold back progress that has been made in progressive adjudication. At the very least, it will help a judge understand the transformation sought while in some cases, it may legitimize and enlighten a judge’s decision to interpret a provision in a more expansive manner.
重新审视预备文件在解释转型宪法中的地位
南非和肯尼亚是采用所谓的“变革宪法”的国家之一,其目的是带来彻底的变革,以修复其社会中积累的深刻裂缝。为了确定如何令人满意地使这些宪法生效,法官可以首先了解人民过去的经验,以及这些经验如何影响所通过的宪法条款。这将反过来使他们了解人民所寻求的是什么样的转变。执行这项任务的来源之一是筹备文件。在本研究中,这些材料详细描述了人们对当时预期的宪法条款的看法以及制宪会议期间的讨论。本文以美国法院为个案研究,试图找出解释肯尼亚宪法和南非宪法条款的法官如何使用预备文件。它通过对两个司法管辖区的精选人权决定进行实证审查来做到这一点。它最终认为,审查预备文件不一定被视为一种限制法官的行为,或使渐进式裁决所取得的进展倒退。至少,它将帮助法官理解所寻求的转变,而在某些情况下,它可能使法官以更广泛的方式解释条款的决定合法化和启发。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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来源期刊
CiteScore
0.80
自引率
0.00%
发文量
13
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