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Transformative Constitutionalism and the Common and Customary Law

2010; Taylor & Francis; Volume: 26; Issue: 3 Linguagem: Inglês

10.1080/19962126.2010.11864997

1996-2126

Dennis Davis, Karl E. Klare,

European and International Contract Law

AbstractA basic assumption of the Constitution, which finds expression in its 'development clauses' (ss 8(3) & 39(2)), is that South Africa cannot progress toward a society based on human dignity, equality, and freedom with a legal system that rigs a transformative constitutional superstructure onto a common and customary law base inherited from the past and indelibly stained by apartheid. We examine South African judges' performance in implementing the development clauses through the lens of legal culture. A central concern is the potential of traditional South African legal culture to constrain the transformative project. South Africa has an advanced Constitution informed by the values of social interdependence and ubuntu, but its jurists continue to deploy traditional methods of legal analysis. Ironically, the United States has a classical liberal and individualist charter, but the Legal Realist tradition bequeathed American lawyers a storehouse of modernist legal methods well suited to South Africa's transformative project. Surveying the cases over the first 15 years of the new dispensation, we find some leading judgments that demonstrate the capability of the courts to transform the common law and that provide glimpses of a more egalitarian, inclusive, and caring legal infrastructure. The chief disappointments are the absence thus far of a coherent exploration of the Constitution's values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-ofpowers vissues. The inhibiting effect of mainstream legal culture is not entirely responsible for these difficulties, but concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well taken. Notes* Work on this article was interrupted by the illness and death of Hallie R Carmen, Klare's partner/ wife and Davis' friend. She identified deeply with the anti-apartheid movement and the promise of the new South Africa. This article is dedicated to her. We are greatly indebted to Professor Frank I Michelman of Harvard Law School. Issues discussed here were first raised for us in his 'The Bill of Rights, the Common Law, and the Freedom-Friendly State' 58 Univ of Miami LR 401 (2003) and 'The Rule of Law, Legality & the Supremacy of the Constitution' in S Woolman, T Roux & M Bishop (eds) The Constitutional Law of South Africa 2 ed (2005) ch 11; see also F Michelman 'On the Uses of Interpretive "Charity": Some Notes on Application, Avoidance, Equality, & Objective Unconstitutionality from the 2007 Term of the Constitutional Court of South Africa' (2008) 1 CCR 1. We are grateful to him and to professors Danie Brand, Sandra Liebenberg, and André van der Walt for incisive comments on the manuscript, to Kathryn Serafino-Dooley for research assistance, and to the University of the Witwatersrand (2004), the University of KwaZulu-Natal (2005), New York Law School (2005), and American University (2006) for opportunities to workshop early drafts. Translations from the Afrikaans are by Dennis Davis unless otherwise noted.