Conquest and constitutionalism : first thoughts on an alternative jurisprudence

Abstract

This article examines the meaning and progress of post-1994 constitutional democracy in South Africa from the perspective of its (dis)continuity with the longue-durée history of colonial conquest, settler-colonialism and white supremacy. The argument developed in this essay is that the lack of restoration and fundamental change that haunts the present South African legal and political order can be traced to this (dis)continuity. This argument is deepened by a problematisation of the widespread public, political and academic worship of the South African constitution as well as a synthesis of a variety of critical perspectives on post-1994 law, society and constitutionalism into a challenge to the putatively transformative and revolutionary pedigree of the 1996 constitution. This article ultimately defends the emerging critique of the constitutional order as a historical opening for the reimagining of a new social order and, for the purposes of this article, an alternative jurisprudence as well.