South African legal culture in a transformative context

Abstract

Joining in the search for a post-apartheid South African jurisprudence, this dissertation departs from transformative constitutionalism, as formulated by Karl Klare. Transformative constitutionalism is a long-term project of bringing about social change through the interpretation and enactment of the constitution. Because the project envisions transformation not as single occurrence but as a continuous process, it requires a legal culture that is conducive to this change. Legal culture pertains to the way in which law and legal concepts are approached. The suggestion is that there is a continuation of a formalistic legal culture in South Africa, and this continuation of formalism stifles the transformation envisioned by the South African Constitution and the project of transformative constitutionalism. The idea of continuation emphasises the momentum of legal culture and is related to institutional inertia. This dissertation links conservatism, positivism, formalism and other related concepts with the notion of spectacle as outlined in the work of Njabulo Ndebele and proposes that South African legal culture is a continuation of spectacle by looking at approaches to history, constitutionalism, democracy and rights. The spectacle, like formalism, prefers the determinate, values display and emphasises the external - it is an overt and celebratory mode devoid of thought. Because the spectacle and the continuation of a legal culture of spectacle stifles transformative constitutionalism, the submission is that there should be a refusal of spectacle in South African legal culture and a return to the ordinary. The notion of refusal comes from an article by Karin Van Marle, and links with a critical and slower approach. Ndebele introduces rediscovery of the ordinary, which is related to the concept of the everyday. Opposed to the spectacle, refusal and the ordinary favours contemplation and commemoration. This leads to a view on approaching history, constitutionalism, democracy and rights as refusal of spectacle and rediscovery of the ordinary. It is an attempt to rethink South Africa’s legal culture in order to move closer to the aims of transformative constitutionalism. Following the aesthetic turn in South African jurisprudence, this dissertation makes use of literary examples to illustrate the arguments. Ndebele’s The Cry of Winnie Mandela and Eben Venter’s Horrelpoot introduce the themes of storytelling, travelling and post-colonialism and aptly expands on the call for a refusal of spectacle.