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Frank Michelman, Postmodernism, Proceduralism, and Constitutional Justice: A Comment on van der Walt and Botha, 9 Constellations 246 (2002).

Abstract: Disagreements regarding the application of constitutional guarantees or rights protections in the courts of contemporary democracies are to be expected based on the principle of "reasonable interpretive pluralism," under which a diversity of complex ethical & metaphysical viewpoints can coexist. Examined here is the discussion of these ideas by legal scholars Johan van der Walt & Henk Botha (2000) in the context of the South African system of constitutional review. Their arguments concerning the constitution’s incorporation of a universally accepted standard – a "common will of the people" – to help decide cases involving a high degree of contestation, along with their assertion that constitutional review should strengthen regard for the "lack of ethical harmony" in society, are challenged as representing paradoxical claims; this is particularly apparent regarding political justification. The political-liberal theory of political justification via constitutional justice is explored, offering the 1998 case of Pretoria City Council v. Walker as an illustrative example. The liberal principle of legitimacy is reviewed, & van der Walt & Botha are accused of being "far-out liberal political justifiers.". K. Hyatt Stewart