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Delineations and Limitations of Study
In undertaking a study on Dworkin of the scope envisaged in this thesis, it must be acknowledged at the outset that there is an inherent limitation. This is mainly because Dworkin writes about the political and legal thought of western democratic legal systems, particularly the United States and that there is a danger always associated with attempting to import such philosophies wholesale to legal systems other than the American legal system. I am inclined to state here that Dworkin’s theory is of universal application because it applies morality (which is universal) to all legal systems. Dworkin thinks that non-democratic systems are not properly called legal systems (they can be, our language is rich enough to accommodate that. This thesis investigates the significance of Dworkin’s constructive interpretation and law as integrity to Namibia.
In dissecting Dworkin’s theory the study is limited to an examination of Dworkin’s interpretive theory as outlined in Law’s Empire,54 Taking Rights Seriously,55 and Justice for Hedgehogs.56 Furthermore, the discussion and analysis of Namibia’s constitutional jurisprudence is limited to the Supreme Court of Appeal, particularly in relation to human dignity, equality, the right to a fair trial, and the rule of law.
The Concept of Constitutionalism
The essence of constitutionalism is that state power ought to be prescribed and restricted by law so as to protect the interests of society.10 Thus, the idea of constitutionalism that permeates the Namibian Constitution is that the constitution must structure and limit the power of the state. Accordingly, the constitution has to ensure that ‘the state has enough power to govern, but in the same vein state power must be limited by the constitution to ensure that it does not violate the law or the human rights of its citizens’.11 In relation to constitutions, written or unwritten, by constitutionalism is meant conformity with the broad philosophical values within a state. According to Barnett, constitutionalism implies something more important than the idea of ‘legality’ which requires official conduct to be in accordance with pre-fixed legal rules. According to the Oxford Companion to the Supreme Court of the United States,12 the doctrine of constitutionalism addresses the problem of ‘how to establish government with sufficient power to realize a community’s shared purposes, yet so structured and controlled that oppression will be prevented’.
It has been acknowledged that constitutionalism is both a prescriptive and a normative concept. It is prescriptive in that it dictates how state power should be exercised, instead of explaining how it is exercised.14 It is also normative in the sense that it sets out values or standards which should be upheld in the governing process.15 Currie & De Waal conclude that ‘as a theory of government, constitutionalism shares with democratic theory a central respect for human worth and dignity’.16
Backed by the court’s review powers, the Constitution in the American context ‘takes on the nature of higher law’.17 This means that constitutional provisions prevail over all ‘legal or political actions of government which are inconsistent with it: they become null and void on the basis that there was no legal authority for them’.18 No wonder then that in modern constitutionalism, the notion of the constitution as higher and fundamental law is common place. In the context of Namibia, Article 1(6) of the Constitution states that ‘This Constitution shall be the supreme law of Namibia’. According to Devenish, ‘the supremacy of the constitution means that all authority must be exercised by virtue of and in accordance with all provisions of the constitution’.19 The supremacy of the constitution therefore obliges government bodies and agencies to act in conformity with the constitution, failing which their actions could be declared invalid by the courts.
The Case of Riggs v Palmer
To illustrate his argument about the role of principles in adjudication and also the nature of theoretical disagreements that judges are often seized with, Dworkin discusses Riggs v Palmer16 as his paradigm case. The facts appear as follows as recounted in Law’s Empire.17 Elmer Palmer murdered his grandfather by poisoning in New York in 1882. The motive for this murder case was that being the beneficiary he feared the possibility of an amendment to his grandfather’s existing will, having recently remarried. Fearing that his grandfather would change the existing will and leave him with nothing, he murdered his grandfather to expedite his inheritance. When his crime was discovered, he was convicted and sentenced to a jail term. The deceased’s daughters then sued the administrator of the will, arguing that Palmer should be denied the inheritance and that the property should now go to them instead of Palmer. The governing law in respect of will, the New York statute of wills, was silent on whether someone named in the will could inherit according to its terms if he had murdered the testator. The case was dismissed in the trial court, and the daughters appealed to the New York State Court of Appeal. The issue for the determination of the court was whether, despite his crime and morally despicable conduct, Palmer was entitled to the inheritance in accordance with the clear provisions of the will?
Palmer’s lawyers argued that the New York Statute of wills was neither vague nor ambiguous regarding conditions of validity and should be decisive irrespective of the justices’ personal moral convictions. They argued that if the court decided against Palmer, the court would be wrongly replacing its own sense of justice for a clear written law. Writing the minority judgment, Judge Gray argued for a literal theory of interpretation. The literal theory of interpretation assumes that ‘statutory language as it stands, on the condition that it is clear and unambiguous, is a reliable expression of legislative intent’.19 He contended that if wills were not to be read this way, anarchy would result as testators could not be sure that their wills could be respected as written. Judge Gray maintained that, properly constructed, the real statute made no exceptions for murderers. He accordingly voted for Palmer.
Chapter One: Introduction
1.1 Rationale
1.2 Theoretical Approach and Methodology
1.3 Delineations and Limitations of Study
1.4 Overview of chapters
Chapter Two: The Constitutional Jurisprudence of the Supreme Court of Namibia
2.1. Introduction
2.2. The current Political Situation in Namibia
2.3. The Concept of Constitutionalism
2.4. Human Rights Protection in the Namibian Constitution
2.5. The Constitutional Jurisprudence of the Supreme Court
2.6 Towards a Constructive Interpretation of Rights
2.7 South African Theoretical Debates
2.8 Conclusion
Chapter Three: Dworkin’s Constructive Interpretation
3.1. Introduction
3.2. Dworkin’s Case against Legal Positivism
3.3. The Political and Moral Background
3.4. Constructive Interpretation and the Point of Law
3.5 Principles and Morals in Interpretation
3.6 Conclusion
Chapter Four: Criticisms of Dworkin
4.1. Introduction
4.2. Objections to Dworkin’s Theory
4.3. A Dworkinian response
4.4. The Meaning of Objectivity in Interpretation
4.5. Conclusion
Chapter Five: Towards a Moral Reading of the Namibian Constitution
5.1. Introduction
5.2. The Point of Constitutionalism
5.3. Dworkin and the Supreme Court of Namibia
5.4 Towards a Narrative for Post-Colonial Jurisprudence
5.5 The Significance of Dworkin’s Legal Theory to Namibia’s Constitutional Jurisprudence
5.6. Limitations of Dworkinian Scholarship to Namibia
5.7. Conclusion
Chapter Six: Conclusion: In Defence of a Constructive Interpretation of the Constitution
