Transformative constitutionalism as/and critique

30 Oct 2009

This article reflects on the possibility of conceiving of the notion of transformative constitutionalism as a critical project. Three arguments raised in Karl Klare's 1998 article, "Legal Culture and Transformative Constitutionalism" 1998 SAJHR 146 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. The author identifies two approaches, amongst others, to the notion of transformative constitutionalism, the one following a more instrumental/functional angle, the other a more critical one. 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.