In 1994 South Africa became a constitutional democracy . As part of the new governance project , a new apex court was created , the South African Constitutional Court . Its first head was a leading member of the South African Bar and the head of the country’s preeminent public interest law firm , the Legal Resources Centre –Arthur Chaskalson SC .
Within a decade this new Court had gained widespread legitimacy and produced a coherent constitutional jurisprudence on which future Courts could build. This paper examines the role that the first president of the Court , Justice Chaskalson played in this achievement .
Two justices generally compete for the title of the Australian High Court’s ‘Towering Justice’: Sir Owen Dixon and Sir Anthony Mason. Dixon’s claim to the title lies in his articulation of a formalistic doctrinal methodology – ‘Dixonian Legalism’ – which held the Court for decades. Mason’s claim lies in his unshackling of the Court from legalism, and his reconceptualising of the Court’s role within the Australian system of government. In this paper, we claim that it is Mason’s legacy that is the most important today. It is the Mason Court’s methodological realism and explicit acknowledgement of values and policy in judicial decision-making, and the doctrinal development that gave the Australian ‘people’ constitutional status and protections that continues to shape modern constitutional law and debates over the judicial role and method. It is against Mason and the jurisprudence of the Mason Court that modern legalists must now define – and defend – themselves.
Chief Justice Barak has been no doubt the most important jurist in Israeli legal history. He singlehandedly transformed the Israeli legal system. In my contribution I will explain the reasons for the resilience of Chief Justice Barak legacy. I will argue that the legacy of Chief Justice Barak has two major components: substantive and institutional. The substantive component includes in particular the protection of basic rights and the pursuit of individualism. The institutional component requires using standards that grants courts broad powers and facilitate judicial activism. Opponents of Chief Justice Barak fall into two camps: those who wish to undo his substantive legacy and those who wish to undo his institutional legacy. Ironically to undo his substantive legacy one has to resort to his institutional legacy. This conflict explains why despite the persistent effort to 'debarakize' the Court, the Court still operates under the shadow of Barak' judicial philosophy.
In the global pantheon of ‘towering judges’ one judge is often overlooked: Hugh Kennedy, the first Chief Justice of Ireland. Kennedy, by sheer intellectual force and principled adherence to the rule of law, dramatically transformed his legal and constitutional system. His role in shaping the constitutional system of an independent Ireland is hard to overstate: he negotiated the independence treaty that produced the 1922 Constitution, and crafted the Constitution itself, ensuring maximal autonomy for the new state by achieving agreement that it would have the same constitutional status, in both law and practice, as Canada vis-à-vis the United Kingdom. As the first Chief Justice of Ireland he was the Court’s backbone of principle, most notably enunciating (in a powerful dissent) a form of ‘basic structure’ doctrine in 1934 in the face of constitutional amendments permitting extraordinarily repressive measures to address the prevailing state of emergency.