LAND DEBATE
Constitution errs in tipping the scales in favour of expropriation
Since the advent of the constitutional era, SA jurisprudence has paid scant attention to the rule of law
The rule of law is the law of laws. Although the constitution gives explicit recognition to the rule of law, it has a separate authority that emphasises the primacy of individual liberty, as well as the right to private property. Since the advent of the constitutional era, SA jurisprudence has, however, focused upon the constitution, with scant attention paid to the rule of law.
First, a subversion: there is no good law, only necessary law, which is the law that serves a social utility. This assertion fits in precisely with the philosophy that emerged from the Enlightenment. A social utility is the fulfillment of the societal needs of a community of autonomous individuals. Those philosophers who conceived of the requirement of a social contract, and its purpose in the exchange of liberty for security, would have assented...
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