In 2019, the Rule of Law Project and the Free Market Foundation published The Constitution and the Rule of Law: An Introduction by the FMF’s Head of Legal (Policy and Research), Martin van Staden LL.B.
Table of contents
About the author
2. Constitutional history of South Africa
3. What is the Rule of Law?
4. Discretionary power
5. Can the Constitution violate the Rule of Law?
6. Public participation
7. The courts
8. Property rights
9. Affirmative action
Appendix: Preamble and Chapter 1 of the Constitution
Foreword by Rex van Schalkwyk
Martin van Staden is a most enterprising young man. In addition to all his other writings and academic commitments, he has now written this book on the Rule of Law. In having done so he has performed a valuable service for both the academic and the practising legal fraternities. The book is however written in such accessible style that it will also serve the interested layman as a useful source of information upon an issue that, especially within the context of present-day South African discourse, requires an informed opinion.
The Rule of Law is widely misunderstood, even within the legal-academic environment. The origin of the problem lies, probably, with the misleading English-language descriptor. ‘Rule of law’ means, to many, ‘rule by’, or ‘according to’ law. It is then readily understood why an error is made in the assumption that rule of law is the sanction for the enacted law. The better descriptor is the German one: rechtsstaat – the state under law. This means that the state itself is subject to law, with the corollary that the state acts illegitimately when it exercises powers that the Law does not confer.
Martin’s closely reasoned, and well selected series of “essays”, each dealing with a distinct issue of concern to students of the Rule of Law, will do much to dispel the misunderstanding to which I have alluded. However, the true value of the work is that it demonstrates how the unconstrained exercise of political authority is corrupted and how, in the process, society loses its cherished freedoms.
The work is also a salutary warning to aspirant law-makers, and those who would assist in repairing a system, broken but not yet destroyed.
The Rule of Law is a self-sustaining construct. The principles enunciated thereby are not dependent upon constitutional or any other authority. Since the advent of the constitutional era in South Africa however, the emphasis has been almost exclusively upon the Constitution, with scant attention paid to the Rule of Law. This is a grievous error because the Constitution and the Rule of Law are both, and each in their own right, foundational systems within the South African legal order.
This book should be required reading for all lawyers, whether in practice or within the academe. It is especially
required for those who presume to make laws by which the citizens are required to conduct their lives.
It is always useful to recall that, within a system of representative democracy, those who are elected to make laws do so on behalf and for the benefit of the electorate. There is no “vertical” authority in public affairs: all authority is passed “horizontally” from the electorate to those who are, temporarily, their representatives.
Rex van Schalkwyk is the Chairman of the FMF’s Rule of Law Board of Advisors and a former judge of the Transvaal Provincial Division of the Supreme Court of South Africa. He authored three books, Enigma’s Diary (Minerva Press, 1998), One Miracle is Not Enough (Bellwether, 1998), and Panic for Democracy (Eloquent Books, 2009).
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