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Spara som favorit. Skickas inom vardagar. Laddas ned direkt. This volume provides a timely assessment on the progress made towards the achievement of a constitutional democracy in South Africa. The chapters collectively present an in-depth analysis of the development of the legal system and of the implications of the Constitution for the social configuration of power. To what extent has the vision of constitutionalism contained in the Constitution been realised? Primarily concerned with the impact of laws and the salience of their existence and enforcement for South Africans, the work highlights the importance of placing the constitutional regime in its historical, cultural, social, economic and political context.

The book further recognises the importance of the South African constitutional provisions for transnational or globalised constitutionalism more broadly. It contains contributions from South African scholars, as well as European authors, bringing in new analytical angles and adding a specific comparative dimension.

Through the prism of South Africa, the authors discuss the innovative character of constitutional and legal provisions in terms of both constitution-making and law-making processes and their contents. Shows through vivid examples the ways that drawing conclusions from perceptions of racial performance contribute to bias in the workplace.

A significant part of this issue goes back to a seeming disconnect between empirical and normative scholars of law and courts that has increased in recent years.

Bibliography in: Taking Ethno-Cultural Diversity Seriously in Constitutional Design

Brandon L. Bartels and Chris W. Written by scholars of political science, law, and sociology, the chapters in the volume offer ideas on a methodology for communicating normative implications in a balanced, nuanced, and modest manner. The contributors argue that if empirical work is strongly suggestive of certain policy or institutional changes, scholars should make those implications known so that information can be diffused. The volume consists of four sections that respectively address the general enterprise of developing normative implications of empirical research, law and decisionmaking, judicial selection, and courts in the broader political and societal context.

This volume represents the start of a conversation on the topic of how the normative implications of empirical research in law and courts can be made more visible. This book will primarily interest scholars of law and courts, as well as students of judicial politics.

Other subfields of political science engaging in empirical research will also find the suggestions made in the book relevant. Law and creativity in the age of the entertainment franchise. Edited by Kathy Bowrey and Michael Handler. The entertainment franchise now shapes the global cultural landscape.

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However, scholars have devoted little attention to how intellectual property law has changed or is being stretched in practice to accommodate this type of creativity and form of enterprise. Recent Articles RSS. Skip to main content area Skip to main content area Skip to institutional navigation Skip to search Skip to section navigation. ABA Required Disclosures.

New Biddle Acquisitions March 18, By Devon W. Carbado and Mitu Gulati. The traditional notion of constitutionalism is inadequate in meeting peculiar needs of transitional societies emerging from traumatic pasts characterised by war, deep divisions or political repression. In such societies, constitutions and law generally have to do more, 66 including addressing past injustices and crises as well as inspiring hope for a better future. They devised delicately-balanced mechanisms to end an immoral and oppressive legal and political regime and usher in a more inspiring future.

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The colonial system pursued by the British administration in Kenya was very similar to South Africa's apartheid regime to the extent that it was based on ideas of white racial supremacy and exploitation. Among the top priorities of the political elite after independence was to consolidate political power.

Thus, soon after independence, the Constitution was amended in fundamental ways such that by , Kenya had become a highly-centralised unitary de jure one-party state with an 'imperial presidency', and with institutions too weak to safeguard human rights, the rule of law and constitutionalism. This transformation entails a reconfiguration of the governance structures and the equilibrium of power among state institutions; the democratisation of governance; changing the normative arrangements; culture, attitudes and practices that surround politics and the exercise of public power; as well as a robust protection of civil and political rights, socio-economic rights, solidarity rights and gender equality rights so as to shift state-citizen relationship in an egalitarian direction.

Through the Constitution, Kenya adopted a transformative Constitution modelled after that of South Africa and tailor-made to address situations peculiar to the country. The Constitution seeks to do more than secure constitutionalism in the traditional sense. Its vision is to redress social and political crises in the country; both those that are a legacy of colonialism and those that began in the post-colonial era.

The Quest for Constitutionalism in South Africa

Kenya's Constitution of is a transformative charter. Unlike the conventional 'liberal' Constitutions of the earlier decades which essentially sought the control and legitimisation of public power, the avowed goal of today's Constitution is to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy What then is transformative constitutionalism and what are its essential elements?

The idea has received a lot of scholarly attention since the end of apartheid in South Africa and its transition to a constitutional democracy. Writing in the context of South Africa's Constitution, Klare defines 'transformative constitutionalism' as. Other scholars have also commented extensively on transformative constitutionalism in the context of South Africa. The late Chief Justice of the Constitutional Court of South Africa, Pius Langa, for instance, acknowledged the difficulty of defining the concept in juridical terms, noting that social and political change is its primary goal.

Although the meaning and scope of transformative constitutionalism may be disputed, a number of its elements may be deduced. In contrast to classical liberalism which assumes formal equality, its focus is on substantive equality and substantive justice.

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This entails a deliberate effort to empower previously-excluded segments of society through devices such as the protection of socio-economic rights, and others aimed at the attainment of social justice. This inevitably requires a broader view of justice beyond the narrow 'negative rights' conception since the realisation of substantive justice requires proactivity by the state. This necessarily requires less emphasis on technicalities and procedure so as to maximise the realisation of substantive rights. In a legal context, this entails methods of legal reasoning that transcend formalism or positivism to ensure that rights are indeed enjoyed.

This is what Klare calls 'legal culture', which he defines to mean lawyers' 'professional sensibilities, habits of mind, and intellectual reflexes'.

Transformative constitutionalism, however, has received a fair amount of criticism. For example, it has been criticised for obscuring the law-politics divide. This inevitably creates points of conflict with the political arms of government that largely retain the power over policy and government expenditure. This facet of transformative constitutionalism could mean judicial pragmatism in bringing about socio-political change.

It could also sound a death knell for the legitimacy of the judiciary since it may bring it into direct collision with political players who feel more entitled to drive the political agenda. In addition, transformative constitutionalism has been criticised as being an insufficient cure for widespread poverty and inequality that continue to ravage post-colonial Africa.

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Sibanda in his criticism argues that this failure is partly because, while the concept is touted as 'post-liberal', it sits comfortably within liberal discourses and fails to place poverty eradication at the centre of constitutional discourses. Despite these criticisms, it is clear that transformative constitutionalism offers hope for better prospects of constitutionalism and protection of fundamental rights in Africa. What becomes clear is that transformative constitutionalism takes a more pragmatic approach towards the realisation of constitutionalism and fundamental rights and freedoms.

This is essential especially in emergent democracies in the global south where the culture of human rights and constitutionalism is either nascent or fragile. There is little doubt that the present South Africa is better off than in the apartheid era as far as the protection of human rights, the rule of law and constitutionalism are concerned. Similarly, the prospects of protection of human rights and respect for constitutionalism and the rule of law in Kenya are better than in any other time in the country's history.

Although the transformative jurisprudence from the courts in the two jurisdictions are at different levels of development, it is clear that there is a shift in both towards a value-based approach to the interpretation and enforcement of rights, and the Constitution generally. This, obviously, signifies the courts' stronger commitment to uphold the rule of law, constitutionalism and the enjoyment of rights. It has become clear that transformative constitutionalism relies on the law and courts as the final arbiters of the meaning of the law for the success of its objectives.

The question that arises concerns the demands of transformative constitutionalism on judges and the judicial process. The next section answers this question by exploring transformative constitutionalism in the adjudicative context.

Since World War II, many democracies around the world have embraced 'judicialism', the notion that courts bear the ultimate power to declare the meaning of the law such that all other state organs must submit to their determinations. What does transformative constitutionalism require of judges as the guardians of the socio-political transformation project?

The answer to this question is likely to be highly contested given that the concept challenges the traditional position in common law jurisdictions that judges must always exercise restraint as they are not law makers. To succeed in this position of trust, it follows first and foremost that the judiciary must assume a more assertive position than in ordinary traditional contexts. In addition, it also entails how judges perceive their role to be in a democracy.

As Klare notes, legal culture affects how lawyers and judges see the law and relate it to politics and society. They must be aware of the prominence that they enjoy and society's expectations of the courts. Thus, the potential of change through the Constitution cannot amount to much unless the courts live up to the task in the adjudication of rights and their enforcement in real cases.

The Quest for Constitutionalism

In other words, the Constitution in its design and vision is transformative, and the courts have the duty to implement transformative constitutionalism. Klare contends that the judicial mindset founded on a particular legal culture must be 'examined and revised so as to reflect the transformative conception of adjudicative process and method envisaged by the doctrine of transformative constitutionalism'.

The provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions but also grows, and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must be strictly construed.

This implies that rights and duties established by substantive post-liberal alterations to constitutional foundations cannot be interpreted according to, and therefore constrained by, past intellectual instincts and judicial mindset. Additionally, Mureinik suggests that 'an opening to transformation requires the changing of legal culture from a culture of authority to culture of justification'.

The power to assess any measure restricting rights to determine whether it meets constitutional standards is vested in the judiciary. This is the essence of proportionality balancing discussed below. The points noted above raise the question of the place of judicial deference to the political arms of government and the doctrine of separation of powers. To be clear, transformative constitutionalism does not dispense with judicial deference. Rather, as of necessity, it abhors hasty deference. It demands a deeper engagement to discover the deep meaning of values and the socio-political aims of the Constitution and a readiness to strike so as to safeguard them. Rather, the Court held, it is an incidence of separation of powers since the courts are the guardians of the meaning of the law.

Relatedly, courts must reject undue attention to technicalities and a cursory approach to adjudication since, as noted above, substantive justice and real enjoyment of rights are the ultimate objectives of transformative constitutionalism. To put it differently, the judge is not merely a midwife; she is also a surgeon with the power to clip existing law to bring it in conformity with the aspirations of the Constitution.

Discourses on transformative constitutionalism suggest that the change in the judicial attitude and approach advocated by the concept is beyond the traditional role of judges in Kenya and most other commonwealth common law jurisdictions. However, the contours of this enhanced judicial power and how it relates to the powers of other arms of government may be hard to define. Nonetheless, this power is constitutionally mandated, and a failure to exercise it the adjudication of human rights and constitutional issues generally is tantamount to an abdication of judicial duty contrary to the oath of office.

Another demand of transformative constitutionalism on the judge is what Klare describes as a 'historical self-conscious doctrine' in adjudication. This means that it pays regard to the 'legal history, traditions and usages of the country concerned'. This is because the socio-political situation of a country is often a product of its history.

De Vos, however, cautions that the application of history as a guide in constitutional interpretation is a slippery path, especially if taken as a 'grand narrative'. This far, it is clear that transformative constitutionalism is an 'activist' philosophy aimed at social and political emancipation through legally-mandated means. Inevitably, this calls for an 'activist' approach in the adjudication of rights.

This necessarily means that quite often the courts will have to scrutinise situations of hidden discrimination and take positions that advance equality even if such positions will go against prevailing social attitudes and prejudices. The decisions of the South African Constitutional Court cited above, such as invalidating the death penalty; striking down laws criminalising sex between consenting males; validating same-sex marriages; and affirming the right of a lesbian couple in a permanent relationship to jointly adopt a child; illustrate this point.

As a matter of fact, these decisions and others have distinguished South Africa's jurisprudence in Africa and globally.