LJU4801 ASSIGNMENT 1 2021

Question 1. Kroeze is critical of the seemingly textualist1 approach of the courts towards their use of so called constitutional values. She raises three aspects that the courts needs to clarify, which are; location, purpose and content of the constitutional values. She laments the court’s failure to locate values and it’s confusion of rights and values. 2 She refers to values as cliché since the courts do not define the or point at their location.3 Kroeze also points failure of courts to place purpose on values. According to her it remains unclear whether they aim to aid the constitution or they are aided by the later. She points out that the conflictual nature of values is the making of the courts, purportedly to make their processes apolitical.4 Thirdly Kroeze points at the avoidance of the court to provide the actual meaning of these values, which are often confused with rights.5 With the absence of defining them, the hierarchy of default rules apply.6 Kroeze challenges the divinity given to these values, and suggests that the courts, provide location, purpose and content to these values on a case by case bases, instead of the vagueness.7 She believe that context is important when dealing with values on case by case bases.8