Dinamika van die hedendaagse oppermagtige grondwet beskou in die lig van voor- en vroeg-moderne opvattings van regsoppergesag en populêre soewereiniteit

Abstract

Constitutional supremacy – the contemporary refined form of the supremacy of the law – is the foundation upon which present supreme constitutions such as that of the United States of America and South Africa are based. Nevertheless, we find the opposite principle, namely that of popular sovereignty also featuring prominently in these constitutions. According to the doctrine underpinning the supreme constitution, the tension between the two is decisively resolved in favour of the supremacy of the law (and the constitution). However, there is a growing critical literature which questions whether the supremacy principle is actually predominant. It is argued, for example, that the most important changes to supreme constitutions result from dominant forces within the populus, beyond the amendment provisions of these constitutions. This literature underscores the need to revisit the relationship between legal supremacy and popular sovereignty. This article enquires into this question, more specifically with reference to the possible insights that might be gained from certain trends in the pre-modern and early modern thinking regarding the relationship between these two principles. The inquiry shows that the conceptions of legal supremacy and popular sovereignty were unified into one single harmonious constitutional theory. This article describes and explains this erstwhile union. It is concluded that popular sovereignty in the form of communal custom, or more correctly, the customs and practices of the dominant forces within the populus, were the active driving force of pre-modern constitutionalism. This is informative for present constitutional theory as it explains why the dominant forces within the populus so decisively determine the fate of the supreme constitution.