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Legal Subsidiarity And Constitutional Rights: A Reply To Aj Van Der Walt, Karl E. Klare

Karl E. Klare

In South African constitutional jurisprudence, “legal subsidiarity” is a theory of the appropriate relationship between and hierarchy among various sources of law, particularly the Constitution, statutes, and the common law. Core tenets of the theory are that courts should avoid making a constitutional decision if a matter can be decided on a non-constitutional basis; that courts should ordinarily defer to legislation; and that courts should avoid any tendency to proliferate separate tracks or sub-systems of law (e.g., courts should not create parallel causes-of-action or remedies respectively grounded, respectively, on the Constitution itself, legislation, and/or the common law). This article generally …