Drawing upon an analysis of the political vectors behind constitutional reform in Israel (1992), Canada (1982) New Zealand (1990), and South Africa (1993), the article suggests that the trend toward constitutionalization in culturally divided polities has not been adequately delineated by extant theories of constitutional transformation. An examination of the political origins of these four constitutional revolutions suggests that judicial empowerment is in many cases the consequence of a conscious strategy undertaken by threatened political and economic elites seeking to preserve their hegemony vis-a-vis the growing influence of “peripheral” groups in crucial majoritarian policymaking arenas. In response to perceived threats by peripheral groups, elites who possess disproportionate access to and influence upon the legal arena often initiate a constitutional entrenchment of rights in order to insulate policymaking from popular political pressure. Power is transferred from majoritarian decision-making arenas to national high courts, where they assume their policy preferences will find greater support. This process of conscious judicial empowerment is likely to occur (a) when the judiciary's public reputation for political impartiality and rectitude is relatively high and (b) when the courts are likely to rule, by and large, in accordance with the cultural propensities and policy preferences of the traditionally hegemonic elites.

The South African Bill of Rights and the ‘Duck/Rabbit’

The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions

Over the past two decades the world has witnessed an astonishingly rapid transition to what may be called juristocracy Around the globe, in numerous countries and in several supranational entities, fundamental constitutional reform has transferred an unprecedented amount of power from representative institutions to judiciaries Most of these polities have a recently adopted constitution or constitutional revision that contains a bill of rights and establishes some form of active judicial review National high courts and supranational tribunals meanwhile have become increasingly important, even crucial, policy-making bodies To paraphrase Alexis de Tocqueville’s observation regarding the United States, there is now hardly any moral, political, or public policy controversy in the new constitutionalism world that does not sooner or later become a judicial one This global trend toward the expansion of the judicial domain is arguably one of the most significant developments in late twentieth and early twenty-first century government The global trend toward judicial empowerment through constitutionalization has been accompanied and reinforced by an almost unequivocal endorsement of the notion of constitutionalism and judicial review by scholars, jurists, and activists alike As Ronald Dworkin—perhaps the most prominent constitutional

/pdf/the-political-origins-of-the-new-constitutionalism-3l1h0ql2tj.pdf

The Political Origins of the New Constitutionalism

This revisionary perspective on South Africa's celebrated Constitutional Court draws on historical and empirical sources alongside conventional legal analysis to show how support from the African National Congress (ANC) government and other political actors has underpinned the Court's landmark cases, which are often applauded too narrowly as merely judicial achievements. Standard accounts see the Court as overseer of a negotiated constitutional compromise and as the looked-to guardian of that constitution against the rising threat of the ANC. However, in reality South African successes have been built on broader and more admirable constitutional politics to a degree no previous account has described or acknowledged. The Court has responded to this context with a substantially consistent but widely misunderstood pattern of deference and intervention. Although a work in progress, this institutional self-understanding represents a powerful effort by an emerging court, as one constitutionally serious actor among others, to build a constitution.

Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa

/pdf/public-employment-and-the-relationship-between-labour-and-31885nkn2r.pdf

Public employment and the relationship between labour and administrative law

After the transition to democracy in 1994, South Africa reached out to perpetrators of violence from all conflicting parties by giving amnesty to those who fully disclosed their politically motivated crimes. This 2007 volume provides a comprehensive analysis of South Africa's amnesty scheme in its practical and normative dimensions. Through empirical analysis of over 1000 amnesty decisions made by the Amnesty Committee of the Truth and Reconciliation Commission, the study measures the scheme against its stated goals of truth recovery, victim empowerment and perpetrator accountability. It also explores normative questions raised by the absence of punishment. Highlighting the distinctive nature of South Africa's conditional amnesty as an exceptional 'rite of passage' into the new, post-conflict society, it argues that the amnesty scheme is best viewed as an attempt to construct a new 'justice script' for a society in transition, in which a legacy of politically motivated violence is being addressed.

/pdf/transitional-amnesty-in-south-africa-3ms4ulwhne.pdf

The South African Bill of Rights and the ‘Duck/Rabbit’

Citations

The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions

The Political Origins of the New Constitutionalism

Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa

Public employment and the relationship between labour and administrative law

Transitional amnesty in South Africa

Related Papers (3)

The black duck in the south-western cape

A Bill of Rights for South Africa: Can The Leopard Change Its Spots?

The South African Constitution