View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by University of Dayton University of Dayton eCommons School of Law Faculty Publications School of Law 4-7-2017 Remnants of Apartheid Common Law Justice: The Primacy of the Spirit, Purport and Objects of the Bills of Rights for Developing the Common Law and Bringing Horizontal Rights to Fruition Christopher J. Roederer University of Dayton,
[email protected] Follow this and additional works at: https://ecommons.udayton.edu/law_fac_pub Part of the Law Commons eCommons Citation Roederer, Christopher J., "Remnants of Apartheid Common Law Justice: The rP imacy of the Spirit, Purport and Objects of the Bills of Rights for Developing the Common Law and Bringing Horizontal Rights to Fruition" (2017). School of Law Faculty Publications. 42. https://ecommons.udayton.edu/law_fac_pub/42 This Article is brought to you for free and open access by the School of Law at eCommons. It has been accepted for inclusion in School of Law Faculty Publications by an authorized administrator of eCommons. For more information, please contact
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[email protected]. Page 1 of 34 South African Journal on Human Rights 1 2 3 REMNANTS OF APARTHEID COMMON LAW JUSTICE: THE PRIMACY OF THE SPIRIT, 4 5 PURPORT AND OBJECTS OF THE BILLS OF RIGHTS FOR DEVELOPING THE 6 COMMON LAW AND BRINGING HORIZONTAL RIGHTS TO FRUITION 7 8 9 The Constitutional Court in Carmichele was correct to hold that ‘[where] the common law 10 11 deviates from the spirit, purport and objects of the Bill of Rights the courts have an obligation to 12 develop it by removing that deviation.’ Professor Anton Fagan’s argument that this is false is 13 14 flawed because he misquotes, misrepresents and misunderstands the Court’s argument.