Common Law Theories Evolution
Summary
Before constitutional democracy in South Africa, common law theories were influenced by British law, emphasizing parliamentary sovereignty with limited judicial review. During this era, courts adhered to literal interpretations and deferred to parliamentary decisions. Post-constitutional democracy, the Constitution became supreme, enhancing judicial review and aligning common law theories with constitutional values. The literal, contextual, purposive, subjective, objective, and judicial theories evolved to ensure laws uphold human rights. Common law theories remain relevant but must align with constitutional principles, balancing legal interpretation with human rights protection.Full Conversation
In your answer add the theories, literal theory, contextual theory, purposive theory, subjective theory, objective theory and judicial theory
Before the advent of constitutional democracy in South Africa, common law theories were applied under the framework of parliamentary sovereignty, heavily influenced by British law. The judiciary's role was limited, focusing on upholding parliamentary decisions.
Effects during Parliamentary Sovereignty Era:
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Literal Theory: Courts interpreted laws based strictly on their literal wording.
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Contextual Theory: This theory was minimally applied, as the focus was on parliamentary intent.
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Purposive Theory: Not commonly used, as the courts avoided questioning legislative intent.
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Subjective Theory: Courts rarely considered subjective legislative intent unless explicitly stated.
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Objective Theory: Emphasized objective legal principles without challenging parliamentary authority.
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Judicial Theory: Courts deferred to parliamentary sovereignty, limiting judicial intervention.
Post-Constitutional Democracy Era:
With the Constitution as the supreme law, the application of common law theories evolved significantly:
- Literal Theory: Still relevant but must align with constitutional values.
- Contextual Theory: More widely applied, considering broader societal and constitutional contexts.
- Purposive Theory: Courts now employ this theory to interpret laws in ways that uphold constitutional rights.
- Subjective Theory: More consideration given to legislative intent that aligns with constitutional principles.
- Objective Theory: Balances objective legal principles with constitutional mandates.
- Judicial Theory: Enhanced judicial review powers allow courts to challenge laws conflicting with constitutional rights.
In the current democratic era, common law theories continue to play a role but must be interpreted in light of constitutional values, ensuring the protection of human rights and freedoms.
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