It argues that if a constitution aims to transform society, it cannot do it just by means of legal discourse. Pdf transformative constitutionalism in south africa marta. It was also a substantively partisan constitution at least in the sense of being a substantively transformative constitution. My colleague from stellenbosch university, prof sandra liebenberg has written an excellent piece on the notion of transformative constitutionalism. Studies cls scholar karl klare in his seminal paper on transformative.
But it was his famous 2006 speech on the nature of transformative constitutionalism for which. In theory, the constitutions of south africa and zimbabwe are transformative documents they seek to transform the lives of ordinary citizens and to create better conditions of living. The epilogue describes the constitution as providing. Transformative constitutionalism is a project under constitutional supremacy which aims at transforming and burying all the wounds of the past to build one unified nation premised on democracy. Three arguments raised in karl klares 1998 article, legal culture and transformative constitutionalism 1998 sajhr 146 are highlighted.
The basis of the framework will be the constitution and the interpretation of the provisions within basing claims on karl klares understanding and my. Pdf transformative constitutionalism a tool for economic. Transformative constitutionalism justice pius langa chief justice of the republic of south africa. See also recently transformative constitutionalism in latin america. In this poignant article klare explains that transformative constitutionalism connotes a. Judicial activism during transformative constitutionalism. No less important, however, is the auxiliary precaution of checking. She identified deeply with the antiapartheid movement and the promise of the new south africa. Pdf transformative constitutionalism in postcolonial africa.
The notion of transformative constitutionalism has found a deep resonance in the jurisprudence of the courts, academic literature and civil society campaigns for. Transformative constitutionalism and the common and customary law work on this article was interrupted by the illness and death of hallie r carmen, klares partner wife and davis friend. Klare, legal culture and transformative constitutionalism, 14 s. Transformative constitution transformative constitutionalism, as such, means using the law to effect comprehensive social change through a nonviolent political means.
Constitutionalism is a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law political organizations are constitutional to the extent that they contain institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry. Transformative constitutionalism in postcolonial africa. Harvard law school institute for global law and policy. Transformative constitutionalism and the common and.
Pdf transformative constitutionalism in south africa. Legal culture and transformative constitutionalism karl e klare our function is to interpret the text of the constitution as it stands. It didnt just spring up out of nowhere, but rather evolved into what it is now. View klare legal culture transformative constitutionalism south africa. Karl klare transformative constitutionalism and the common and. Legal culture and transformative constitutionalism karl e klare george j. Your use of this heinonline pdf indicates your acceptance of heinonlines terms and.
Transformative constitutionalism stellenbosch university. It has been more than a decade since karl klare introduced the term transformative constitutionalism in his seminal article legal culture and transformative constitutionalism into the legal landscape of south africa. Written for a conference in celebration of the tenth anniversary of the publication of karl klares article on legal culture and transformative constitutionalism 1998 sajhr 146, this paper argues that klares article, while justly celebrated, defines the project of transformative constitutionalism in too exclusive a fashion. Constitutionalism is sometimes regarded as a synonym for limited government. Karl klare described south african constitutionalism as an. However, for those criticsand i include myself among them particularly interested in the. See k klare legal culture and transformative constitutionalism 1998 14 sajhr 146, 168. I would suggest that the epilogue, also known as the postamble, to the interim constitution provides that basis. Legal culture and transformative constitutionalism.
In particular, it unnecessarily requires, as a condition for. Karl e klare 1998 legal culture and transformative constitutionalism, south african journal on human rights, 14. According to karl klare, this notion is a longterm project of constitutional enactment, interpretation and enforcement committed to transforming a countrys political, legal and social institutions, and power relations in a democratic. A basic assumption of the constitution, which finds expression in its \u27development clauses\u27 ss 83 \u26 392, is that south africa cannot progress toward a society based on human dignity, equality, and freedom with a legal system that rigs a transformative. Legal culture and transformative constitutionalism scinapse. If you continue browsing the site, you agree to the use of cookies on this website. Transformative constitutionalism of south africa has the purpose of transforming. Written for a conference in celebration of the tenth anniversary of the publication of karl klares article on legal culture and transformative constitutionalism 1998 sajhr 146, this paper argues that klares article, while justly celebrated, defines the project of transformative constitutionalism in too exclusive a.
Slideshare uses cookies to improve functionality and performance, and to provide you with relevant advertising. See k klare legal culture and transformative constitutionalism 1998 14 sajhr 146, 150. See also dennis davis and karl klare transformative constitutionalism and the common and customary law 26 journal of human rights 2010 403. Drawing on karl klares famous characterization of the south african constitution as transformative. By criticizing the liberal scope of the constitution, this work also emphasizes the need to advance a critical and transformative model of constitutionalism in order to promote a social construction and a major impact of human rights. The search text of this pdf is generated from uncorrected ocr text. Legal culture and transformative constitutionalism 14. Originally a south african brand, transformative constitutionalism is.
Legal culture and transformative constitutionalism free download as pdf file. Populist constitutionalism and the democratic minimum core. Way back in 1215, king john of england was forced by a group of wealthy. Transformative constitutionalism and the common and customary law. Transformative constitutionalism national law university delhi. I do not dispute the observation made by karl klare that south african lawyers still have a relatively strong faith in the precision, determinacy and self revealingness of words and texts. These fairy tales have been more tenuous since the constitution conferred significant power on the judiciary to interrogate and renovate the common law our constitution did not come up.
Klare legal culture transformative constitutionalism. On some accounts, this doctrine is associated in its turn with minimal or less government. According to karl klare, transformative constitutionalism connotes an enterprise of inducing largescale social change through nonviolent political processes grounded in law. Transformative constitutionalism connotes an enterprise of inducing largescale social change through non violent political processes grounded in law. Justice albie sachs ilt would be foolish to deny that the judicial process, especially in the field of. Northeastern university school of law research paper no. A skeptical view jeremy waldron new york university school of law, jeremy. Sabinet transformative constitutionalism as and critique. Accordingly, whatever our personal views on this fraught subject capital punishment might be, our response must be a purely legal one. Judges make law despite the fairy tales of legislation discovery that the public are told.
Transformative constitutionalism, substantive equality and. As i explain below, the concept was first used in relation to south african constitutionalism in karl e. Adjudication under a transformative constitution, european journal of international law, volume 24, issue 2, may. Constitutionalism in its distinctive sense is a modern phenomenon which can be defined only by facing the complexities of defining a constitution. Sabinet transformative constitutionalism and the best. According to karl klare, tc is the perfect architect for entrenching a legal. Transformative constitutionalism, substantive equality and the role of the courts.