Towards a Sociology of Constitutional Transformation: Understanding South Africa's Post-Apartheid Constitutional Order

Abstract

A sociology of constitutions holds the promise of providing multiple and complex understandings of the diverse forms of governance that characterize our increasingly global society. While a functional approach offers intriguing insights into the role of constitutions in the reproduction and transmission of power, a constitutive approach may provide insight into the constant transformation of constitutional understandings and identities. Using the South African experience as the focal point this chapter considers how the social relations of governance are reflected in and shaped by the constitutional struggles that produce constitutional outcomes through processes of popular participation, negotiated drafts, formal adoptions and continuing adjudication. The challenge in articulating a sociology of constitutions from this perspective is to explore the relationship between the social processes that produce a constitutional settlement at any particular moment in time and the continuing role the constitutional ideas and institutions play in the creation and transformation of any society's constitutional identity. It is this relationship, between the constitutive and functional dimensions of constitutions that makes a sociology of constitutional transformation so central to our understanding of constitutionalism in the 21st century.

Keywords: Constitutionalism, Sociology of Constitutions, South Africa, Apartheid, democratic transitions, constitutional history, transformation, post-apartheid

JEL Classification: K19