Constituting Democracy: Law, Globalism and South Africa’s by Heinz Klug

By Heinz Klug

Opposed to the backdrop of South Africa's transition from apartheid, this provocative booklet explores the position of overdue twentieth-century constitutionalism in facilitating political switch. whereas utilizing South Africa as a case research, Klug's greater venture is to enquire why there was renewed religion in justiciable constitutions and democratic constitutionalism, regardless of their many flaws. This exam of South Africa's constitution-making strategy offers vital new insights into the position of legislation within the transition to democracy.

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This is explored in Chapter 8 through consideration of a series of specific conflicts contextualizing ongoing struggles and debates over social resources and authority in South Africa. These examples are used to demonstrate the role of the Constitutional Court in enabling political change and managing political and social conflict. This role is facilitated by the Court's ability to draw on both global and local sources in accepting or denying particular claims to constitutional rights and powers.

49 28 C H A P T E R 2 LEGAL LEGACIES AND CONSTITUTIONAL PATHS A standard explanation for the shift to democratic constitutionalism, and the empowerment of courts it implies, in states emerging from dictatorships and social conflict is that the shift is a reaction to that society's particular past. While the rejection of tyranny and the embracing of rights may seem a logical consequence of their prior denial, this explanation does not explain why this should include a turn towards the judiciary as the ultimate protectors of such rights.

REJECTING JUDICIAL REVIEW With the adoption of the 1996 'final' Constitution, the history of constitutionalism in South Africa may be summarized as the rise and fall of parliamentary sovereignty. Despite its short-lived hegemony, compared to pre-colonial and colonial forms of governance based on participation by status-defined subjects or imperial command, it was the rise and dominance of parliamentary sovereignty that shaped South Africa's modern constitutional history. Given this history,6 consensus on the adoption of a justiciable constitution as one of the defining features of post-apartheid South Africa is an extraordinary outcome.

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