Acta Universitatis Danubius. Juridica, Vol 14, No 3 (2018)

Remodeling the Constitution’s Transformation Trajectory: From Normative Legal Instruments to Normative Moral Approaches

Mashele Rapatsa

Abstract


The Constitution of the Republic of South Africa, 1996 has been described as one of the best in the world. According to Karl Klare, this Constitution is a transformative instrument which offers an enterprise to induce major social change. It is for this reason that various normative approaches, guided significantly by various interpretive methods, including Dworkin’s, emerged from the reading of every constitutional provision. This has been prevalent since the early days of the post-1994 democratic dispensation, under which the courts have been actively involved in attempting to ensure meaningful realisation and enjoyment of civil and political rights, socio-economic rights and third-generation rights. The Constitutional Court, which inadvertently became both a constitutional and human rights activist, has particularly been at the forefront. However, the extent to which the Constitution is the ‘best’ is a matter that has not been expansively dealt with. Thus, this article proffers a critical reflection of the ‘best Constitution’ narrative, especially within the context of transformation and distribution of constitutional law knowledge. This derives significant impetus from Klare’s conceptualisation of a social change phenomenon, with the view towards finding strategic mechanisms of reformatting legal knowledge (constitutional and human rights knowledge) in the contemporary South Africa. At the center of attention is the idea of explaining constitutionally entrenched norms that subscribes to strict legal approach, whereas aspects deriving from morality could have been opted for, in order to mutually locate solutions or mechanisms that would effectively advance noble agendas of reconciliation, transformation and decolonisation. The article addresses two prime research questions: first, why the Constitution is described as the best? and, second, why there is a need to harmonise law and morality to realise social and economic transformation. The article adopts a theory-based analysis, relying fundamentally on theoretical connotations founded in Fanon’s conception of change and leadership, Klare’s Transformative Constitutionalism and Nussbaum’s Capabilities Approach.

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