Etiese grondslae van die grondwetlike reg – ’n Reformatoriese perspektief

Abstract

Ethical foundations of constitutional jurisprudence – a Reformational perspective

South African constitutional jurisprudence is delivered on a value-driven basis. The implication of this approach is that the Constitution is interpreted by courts in terms of the fundamental values of the Constitution of 1996, that is, human dignity, equality and freedom. The value-driven basis of constitutional jurisprudence was emphasised by the Constitutional Court in State v Makwanyane. Abstract ideals, however, always suppose certain ethical presuppositions. It is therefore important that a common framework of values should be created to help courts interpret the Constitution. The aim of this article is to focus on the ethical content that the Constitutional Court currently gives to the fundamental values of the Constitution, and to provide a brief Reformational perspective on the values of dignity, equality and freedom. The central theoretical argument of this article is that courts found rights, in accordance with constitutionalism which is a product of the Enlightenment, anthropocentrically in the inherent qualities that man possesses. The Reformational tradition, in contrast, founds the rights of man theocentrically in man’s relation with God.