Chapter 9 - Assessing the Social Transformation Performance of the South African Constitutional Court: From Totalitarianism to the Rule of Law

Summary

INTRODUCTION

The legal academic literature on the role of the South African Constitutional Court (CCSA) in nation-building and social transformation is preoccupied with a set of concerns first raised by Karl Klare in a 1998 law journal article. In this article, Klare argued that the South African Constitution must be understood as having initiated a collective ‘project’ of social transformation through law in which the CCSA had the major part to play. On this understanding, the proper measure of the CCSA's social transformation performance is the extent to which it has fulfilled its primary institutional function of enforcing the liberalprogressive (or what Klare terms ‘postliberal’) legal rule changes envisaged by the Constitution. These changes are to be effected not just as a matter of result (constitutionally offensive legislation struck down or common law legal rules developed in a constitutionally compliant way), but also as a matter of adjudicative style: that is, the CCSA should change its decision-making methods to fit in with the Constitution's ‘caring and aspirationally egalitarian ethos’. What Klare means by this is that the Court should openly concede the political nature of its function and foreground the values and policy considerations it takes into account when deciding cases. In addition to the broader process of social transformation that the Constitution envisages, therefore (indeed, in Klare's argument, posited as a necessary condition for that broader process) is a particular type of legal-cultural transformation: the transformation of South African legal culture from formalism to something approximating the cultural ethos of the Critical Legal Studies movement in the United States.

The sociological assumptions underlying this argument are somewhat questionable, involving as they do quite controversial claims about the role of courts in social change. It is not at all obvious, in a country like South Africa, which has fairly low levels of rights consciousness and access to justice, why changes in legal rules and judicial decision-making methods should have a significant impact on actual social relations.