Transformative Constitutionalism and the best interpretation of the South African constitution : distinction without a difference?

Abstract

Written for a conference in celebration of the tenth anniversary of the publication of Karl Klare's article on "Legal Culture and Transformative Constitutionalism" 1998 SAJHR 146, this paper argues that Klare's article, while justly celebrated, defines the project of transformative constitutionalism in too exclusive a fashion. In particular, it unnecessarily requires, as a condition for participation in that project, the rejection of the liberal legalist distinction between law and politics in favour of a candid recognition of the politics of adjudication. Whatever the outcome of the decades-old dispute in Anglo-American legal theory over this question, the Constitution of the Republic of South Africa, 1996 clearly commits itself to a number of progressive political values. It is therefore not obvious why an interpretive method based on Ronald Dworkin's notion of putting the Constitution "in its best light" would not produce the progressive legal outcomes Klare advocates, while at the same time insulating the South African judiciary from the potentially legitimacy-threatening charge of political adjudication. To the extent that Klare's article makes successful implementation of the project of transformative constitutionalism conditional on changing South Africa's traditionally formalist legal culture, the imposition of this condition, given that it is unlikely to be fulfilled in the short term, was (a) strategically unwise; and (b) wrongly premised on a circular argument about the preferred method of interpretation that the Constitution supposedly invites. Rather than being made to depend on a particular interpretive method, the project of transformative constitutionalism should be open to all participants, subject only to respect for the fundamental tenets of non-violent, democratic, law-driven social change.