Das Fremde und das Eigene: Der Einfluss der Rechtsvergleichung auf das Verfassungsrecht Südafrikas

• Published in: Recht in Afrika
• Main Author: Marion Sendker
• Format: Article in Journal/Newspaper
• Language: German; English; French
• Published: Nomos Verlagsgesellschaft mbH & Co. KG 2016
• Subjects: Asia and Eurasia; Africa; Pacific Area; and Antarctica; KL-KWX; Pacific; Antarc*; Antarctica
• Online Access: https://doi.org/10.5771/2363-6270-2016-1-83; https://doaj.org/article/4409a3e2f76840be918524a8d4284503

Comparative law has always been an important tool in the formation and development of the South African rule of law. The perspective of South African comparative law has changed significantly over the past decades. Whereas foreign jurisprudence had been used to support the sovereignty of parliament in the early 20th century, over time, this approach has turned to the point that legal experience from foreign countries is deemed as inspiration for a democratic, liberal and constitutional take on the rule of law. The development in South Africa is exemplary for both the chances and the difficulties of comparative law as an instrument for the rule of law. Hence, neighbouring African countries as well as other older democracies, such as the United States of America (USA), look at South Africa as a role model of comparative law. In theory, the South African constitution is an ethical corner- stone, on which a democratic and just country roots. Such a constitution that has already been subject of comparative law in other countries would not be as it is today if not for the benefits gained from comparative legal work. Nevertheless, the past has demonstrated that comparative law takes a lot of effort and is always at risk to result in arbitrariness. Especial- ly when dealing with the implementation of the rule of law into daily life comparative law can reach its limits. Notwithstanding that, it has proven to be a grateful method promising progress and vision when it comes to forming a whole new constitution or within the work of the judicative as well as in general theoretical contexts and discourses.