Transformative Constitutionalism and the Common and Customary Law

Posted: 19 Dec 2011 Last revised: 14 Jan 2012

See all articles by Dennis Davis

Dennis Davis

Judge of the High Court of South Africa; University of Cape Town (UCT) - Faculty of Law

Karl Klare

Northeastern University - School of Law

Date Written: December 16, 2011

Abstract

A 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 individualistic 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 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-of-powers issues. 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.

Suggested Citation

Davis, Dennis and Klare, Karl, Transformative Constitutionalism and the Common and Customary Law (December 16, 2011). South African Journal on Human Rights, Vol. 26, No. 3, pp. 403-509, 2010; Northeastern University School of Law Research Paper No. 68-2011. Available at SSRN: https://ssrn.com/abstract=1973623

Dennis Davis

Judge of the High Court of South Africa; University of Cape Town (UCT) - Faculty of Law ( email )

Private Bag
Rondebosch 7701
South Africa

Karl Klare (Contact Author)

Northeastern University - School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

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