The quest for radical transformation and the limits and limitations of law

Abstract

At the heart of this thesis lies the urgency of radical transformation. The dawn of constitutionalism in South Africa in 1994 and finally in 1996 is predominantly conceived of as heralding the birth of a new nation and concomitantly the birth of a new South Africa. In this sense constitutionalism in South Africa is regarded as representing a fundamental break with the past characterised by colonialism and apartheid. The idea of a fundamental break with the past correlates with the idea of newness and in South Africa this idea of newness has given rise to a ubiquitous spirit of constitutional optimism. However this constitutional optimism has itself become a terrain of contestation. The contestation generally relates to how best to interpret and conceive of the Constitution so as to enable the attainment of its objectives. This contestation can roughly be categorised as being between variants of liberal approaches to law and other genres of critique, notably transformative approaches to law. These genres of critique are naturally critical towards liberal formalist/positivist approaches to law. In this thesis, I impute Christodoulidis's notion of republicanism to all approaches that see in law and constitutionalism the possibility for (radical) transformation. In this sense I argue against legal and constitutional reflexivity. Following a systems theoretical approach, I critique both liberal/formalist/positivist approaches and also genres of critique that optimistically defer the reconstruction and renewal of South Africa through legal and constitutional means. I suggest that because of the inability of systems to steer one another, the suggestion that law can steer the economy and politics is bound to fail. I further suggest that law and constitutionalism, being products of Enlightenment's modernity are more likely to serve the fundamental coordinates of colonialism and apartheid as opposed to the eradication of colonialism and apartheid in all their manifestations.