L’ «altra Corte». Giustizia costituzionale e dissenso in prospettiva comparata: il caso sudafricano = The «Other Court». Constitutional Justice and Dissent in Comparative Perspective: The Case of South Africa

This article aims to explore the role of dissenting opinions in constitutional courts adopting a peculiar perspective: the view of the judge who dissents. Which are the most recurrent lines of argumentation used by dissenters? What is the idea about the law, the Constitution and theories of legal interpretation surrounding these opinions? What the dissenting opinion say about the internal equilibrium of the court? What is the portrait of judges and justice which is possible to extrapolate from the analysis of dissenting opinions? These questions will be answered by using the Constitutional Court of South Africa as a test case. Drawing upon the main findings of the comparative studies on constitutional justice, the articles analyses the separate opinions issued by Albie Sachs and Katie O’ Regan in the timeframe of their mandate (1995 – 2009). It finds that, despite a conspicuous number of dissents, constitutional reasoning appears quite cohesive with reference to the role of the court and constitutional judges, and to the way in which the Constitution should be read and implemented. Among the reasons explaining the South African paradox (where dissent serves unity) are not only the method of the decision-making process of the Court, but also the «transformative role» in which judges feel invested. By interpreting and applying the Constitution, they firmly believe they are contributing to the creation of a new legal and social order.