Legal subsidiarity and constitutional rights: a reply to AJ van der Walt
Originally published in Constitutional Court Review, Vol. 1, pp. 129-154, 2008.
In South African constitutional jurisprudence, “legal subsidiarity” is a theory of the appropriate relationship between and hierarchy among various sources of law, particularly the Constitution, statutes, and the common law. Core tenets of the theory are that courts should avoid making a constitutional decision if a matter can be decided on a non-constitutional basis; that courts should ordinarily defer to legislation; and that courts should avoid any tendency to proliferate separate tracks or sub-systems of law (e.g., courts should not create parallel causes-of-action or remedies respectively grounded, respectively, on the Constitution itself, legislation, and/or the common law). This article generally shares the critical approach and larger jurisprudence of the author to whom it responds. However, the article questions the coherence of legal subsidiarity theory and its effectiveness in resolving the recurring problems to which it is addressed. A major concern posed is whether incautious application of subsidiarity theory may inappropriately authorize legislature to limit the scope of constitutional rights.
Constitutional Court Review, Vol. 1, pp. 129-154, 2008.