Law as Justification: Glenister, Separation of Powers and the Rule of Law
Authors Cathleen Powell
Affiliations: Associate Professor, Department of Public Law, UCT Law Faculty
Source: Acta Juridica, 2017, p. 55 – 74
This article analyses the majority and minority judgments in Glenister through the lens of the doctrine of separation of powers. This is not an aspect that the majority judgment addresses explicitly, and, as a result, the minority’s objection that the majority violated this doctrine, acting outside of its powers and intruding on the exclusively ‘political’ domain of the other two branches, appears to be unanswered. Drawing on the legal philosophy of Lon L. Fuller, this article explores the idea that the rule of law requires an ongoing dialogue between all branches of government, in which all branches justify their exercise of power under law. Such a conception of the rule of law requires a more fluid, porous relationship between the branches, and does not admit of exclusive domains for either law or politics. The majority and minority judgments in Glenister are discussed as examples of the rule-of-law based and traditional conceptions of the doctrine of separation of powers respectively. Understood in terms of Fuller’s rule of law theory, the majority judgment in Glenister did not violate the doctrine of separation of powers, but instead helped to uphold a constitutionally functional relationship between all three branches of government.