At the heart of Trans-formative Constitutionalism is the idea of change. In post-1994 South Africa we are grappling with disagreements concerning the changes that have come, and/or the radical structural changes that have not yet been realised, by or through the South African Constitution.
Convenor: Lwando Scott
Some argue that the Constitution has not done enough, some argue that it is the government that needs to do more, and some argue for an alternative jurisprudence to attend to post-colonial South African quandaries. Furthermore, South Africa is grappling with citizens asking how long will it take for changes to appear, to be felt, to be lived, particularly by those who are marginalised vis-á-vis race, class, gender, and sexuality. Scholars like Drucilla Cornell, who has written extensively about law and revolution, paying particular attention to uBuntu and dignity in the South African transition, has argued that the post-1994 South Africa is a “substantive revolution.” This is a term popularised by theorist Hans Kelsen, which means a revolution that does not completely do away with the previous regime’s legal order. The idea of not completely doing away with the previous regime’s legal order has become a real contestation in post Rhodes Must Fall and Fees Must Fall movements, where there are serious debates and emphatic calls for decolonisation. The renewed calls for decolonisation have also reached the South African Constitution.
The South African Constitution was constructed as “the bridge” connecting the past of a racially divided country to the imaginary conception of a society united in its diversity that was yet to be built, as well as the means by which that society would be engineered into being over time. This ideal has become closely associated with the idea or philosophy of transformative constitutionalism, which would hold the liberal and radical traditions in equilibrium and establish a national consensus about the nature of citizenship and the future transformation of society after apartheid. More critically, Chief Justice Pius Langa has argued that the metaphor of the bridge is off the mark, in that transformation is ongoing. He argued, “the traditional metaphor of the bridge is misleading as it seems to suggest that transformation is a temporary event, that at some point we will reach the other side of the bridge” (Pius Langa, 2006:2-3).
Nonetheless, the metaphor of “the bridge” has held for more than two decades, but in recent years the foundations of constitutional democracy in the country have been significantly challenged, especially on the grounds of the promise of humanistic principles and commitments, such as, dignity, ownership, freedom of movement, and self-expression, that structure the very form of constitutional democracy itself. Some critics question whether the law can ever serve as an instrument of radical social and economic change. Here we want to ask, how can we think about the transformative constitutionalism in post-apartheid South Africa located within contemporary humanities research and jurisprudence and legal philosophy? What does it mean to read the pos-apartheid South Africa as a product of a Constitutional Revolution in relation to liberal-humanist and radical traditions of thought on social change? Considering the limits of the South African Constitutional Revolution, to what extent can the law ever effect radical social change? One of the critiques of Constitutional Revolution is that it pretends that the law and the constitution can deliver change, some argue it has not, the question is, can it ever? To what extent has failure by the state contributed to the non-realisation of the Constitutional Revolution? Through the Trans-formative Constitutionalism research project, the CHR is grappling with these questions, and many more. Trans-formative Constitutionalism intersects two Research Platforms of the CHR: Becoming Technical of the Human and Migrating Violence.