Reading transformative constitutionalism through a spatial lens : the value of legal geography for transformation

Abstract

As an attempt to contribute meaningfully to scholarly intervention within the post-apartheid South African jurisprudence, this dissertation joins the engagement with transformative constitutionalism, as formulated by Karl Klare. The main research problem for this project is to ask what role transformative constitutionalism plays in the realisation of socio-economic rights (if any). My main interest is to read transformative constitutionalism through a spatial lens and to investigate the connection between the continuance of apartheid spatial organisation and poverty. The overarching enquiry is based on the question: how could transformative constitutionalism combined with a concern with legal geography address poverty and specifically the implementation of socio-economic rights? Transformative constitutionalism is a long-term project intended to bring about change through interpretation in the adjudicative process; it embodies a desire a changed legal culture in the constitutional dispensation. The concept of transformative constitutionalism has been described using the bridge metaphor enunciated by Mureinik which symbolises a transition from an authoritarian past, towards a culture of justification. The assumption has been that this is the kind of approach and change in legal culture that has informed post- apartheid jurisprudence and adjudication. The assumption made in this research is that transformative constitutionalism as an approach is an enabling tool because it embodies within its function, change and a transformed legal culture. However, I go further by focusing my discussion of transformative constitutionalism through a spatial lens to investigate how legal geography can address poverty and the implementation of socio-economic rights specifically. Legal geography is a stream of scholarship that considers the interconnectedness of law and spatiality. The focus on spatiality purports to discuss space as an ‘ethical position’ in as far as it calls for a radical thinking about justice, spatial justice. The discourse framework of transformative constitutionalism can be significantly advanced by adopting a critical spatial perspective. The overlap between space, knowledge and power can be both oppressive and enabling. Thinking spatially about justice can reveal new insights that challenge and expand our practical knowledge towards more meaningful actions to achieve greater justice and realise a legal culture concerned with capacitating the impoverished people.