Karl E. Klare 10 Estimated H-index: Find in Lib. Add to Collection. References 3 Citations Cite. A Bridge to Where?
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Three arguments raised in Karl Klare's article, "Legal Culture and Transformative Constitutionalism" SAJHR are highlighted : the discussion of indeterminacy, or, as Klare phrases it, the tension between freedom and constraint ; the description of South African legal culture as conservative and the consequences this has for legal reform and development ; and the tentative reading of the South African Constitution as a "post-liberal" document.
She subscribes to the critical approach, and with reference to an article by Mbembe and Nuttall elaborates on the need for a critical approach to transformative constitutionalism, but also to law and legal theory in general. The metaphors of walking following De Certau and Mbembe and Nuttall and weaving following Cavarero are considered as ways to think about transformative constitutionalism.
Hannah Arendt, and her insistence on thinking, is evoked to underscore the necessity of a critical and thoughtful engagement with the complexities of law, politics and the social within a transformative context. Size: Format: PDF. Description: Article. Login Register. View Usage Statistics. Theme by. Contact Us Send Feedback.
Scholars in mutual estrangement?
There is considerable thematic, geographical and methodological overlap between the two. Yet, the two strands of scholarship do not systematically connect. My argument in this post is that connecting the two approaches is productive because it confronts each side with its own blind spots. Acknowledging these mutual blind spots opens avenues for future research that might undo some of the mutual estrangement between the two scholarly communities. These different genealogies and postures may explain some of the estrangement between the two sides. Methodologically, both share initial assumptions about the role of lawyers and courts as agents of social change, and both had to differentiate and contextualize these assumptions empirically with the help of interdisciplinary methods. These liberal assumptions, however, do not hold in different constitutional contexts, shaped by different varieties of constitutionalism.
Legal Culture and Transformative Constitutionalism
Transformative constitutionalism and the adjudication of constitutional rights in Africa. Transformative constitutionalism, popularised in the context of South Africa's transition from apartheid to constitutional democracy, arguably offers an antidote for failed constitutionalism and weak protection of fundamental rights and freedoms in emergent democracies in Africa. This article examines the idea of transformative constitutionalism and its implications for the adjudication of fundamental rights and freedoms. It recognises that past failures of constitutionalism in Africa, to a significant degree entailed state abuses of fundamental rights and the corresponding inability of the courts to uphold these rights. Using examples of adjudication of rights in the post period in Kenya and post-apartheid era in South Africa, the article argues that, taken as a model for constitutionalism in Africa, transformative constitutionalism offers hope for increased protection of fundamental rights and freedoms.
Transformative constitutionalism as/and critique
Yet, it remains unclear what transformative constitutionalism entails. This Article argues that transformative constitutions differ from traditional liberal constitutions by conceptualizing the constitution as a comprehensive order for a more just and equal society and a tool to prompt state action to that purpose as much as restrain it. An advantage of opening up our understanding of transformative constitutionalism in this way is the comparative perspective it offers. Within the traditional legal model, exemplified by the German case, courts seek to preserve those features typically associated with judicial rather than political processes, for example the individualized nature of proceedings. In contrast, the Indian collaborative approach often involves negotiation between different stakeholders and emphasizes legal flexibility.