A recent decision by SA’s Constitutional Court on the right to peaceful protest has drawn renewed attention to its role in safeguarding the country’s democracy. In declaring a section of the Regulation of Gatherings Act partly unconstitutional, the court confirmed its function as a protector of democratic rights. But, how in general should we measure the success of a constitutional court when it comes to protecting democratic rights? The answer isn’t straightforward because there are conflicting views about the standard we should use. For most lawyers, constitutional courts’ success in protecting democracy should be measured by their juris prudential record — their performance according to legal professional standards of appropriate decision-making. On this view of things, courts are essentially reactive institutions. The only power they have to influence the quality of democracy is to interpret democratic rights in the cases they happen to be asked to decide. For many political sci...

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