Finding the Right Paradigm - Comparative Lessons for South Africa's Transformative Constitutionalism

Michaela Hailbronner 

Institute for Comparative and Intl. Law in Africa

March 30, 2015

Abstract:    
A South African “brand”, transformative constitutionalism has traditionally been seen either as particularly South African or at least Global South paradigm. But its call for the comprehensive change of state and society extends beyond the Global South to countries such as Germany that share a similarly broad understanding of constitutional law and the need for an activist state. Different countries, however, have approached transformative constitutionalism differently: While some have taken a more “traditional” law-focused approach, others have opted for a more “political” one. Within the traditional legal model, exemplified by the German case, courts seek to preserve those features typically associated with judicial rather than political processes, e.g. the individualized nature of proceedings. In contrast, the Indian co-ordinate approach often involves negotiation between different stake-holders and emphasizes legal flexibility.

Both models come with different approaches to judicial legitimacy: Whereas the Indian Supreme Court emphasizes its contribution to alleviating suffering, judicial legitimacy in Germany follows more traditional lines of Continental legal culture that ground judicial authority in professionalism and legal autonomy. When it comes to realizing a transformative constitution, both approaches have their downsides and advantages. Much suggests therefore that the best way for South Africans is to take a middle path. Such a middle path would seek to avoid the overly hierarchical German approach with its problematic consequences for democratic empowerment by emphasizing collaborative and dialogic procedures. At the same time, however, it would preserve the key role of individual rights and emphasize the role of doctrinal scholarship in contributing to the development of a body of transformative law – thus providing the foundation for an independent source of professional judicial legitimacy.

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2636387