Deliberating the rule of law and constitutional supremacy from the perspective of the factual dimension of law

Abstract

This discussion critiques the generally accepted doctrine of the rule of law and constitutional supremacy prevalent in contemporary constitutional states, including the doctrine as conceived in terms of the Constitution of the Republic of South Africa. The critique proceeds from the view that law, more specifically positive law is essentially two-dimensional. On the one hand there is the dimension of justice; that is, law's justice, moral or critical dimension (and requisite). On the other hand there is law's factual dimension (and requisite). Both of these dimensions are essential for an individual norm to qualify as a norm of positive law. By the same token, on a comprehensive basis both dimensions are also essential requisites for a system of law to be in place. A clear understanding of the two-dimensionality of law provides the basis for the critique presented in the present discussion, which is focussed upon the factual dimension of law. It will be pointed out that the leading doctrine on the rule of law and constitutional supremacy prevalent in contemporary constitutional states is premised on a failure to account for the factual dimension; and that the doctrine in consequence obscures a clear insight into the factual dimension of law, and therefore obscures a clear understanding of the nature and content of (positive) law, including the constitution.