There is no Supreme Constitution: A Critique of Statist-Individualist Constitutionalism

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Acknowledgements About the Author Introduction Chapter 1 - Constitutionalism Introduction The core characteristics of constitutionalism Normativity – the commitment to justice Fundamental (higher) law The consensual basis of the rule of law – customary law-abiding conduct Limited government; diffusion and balance of power; the idea of the mixed constitution; public office Chapter 2 - Statist-individualist Constitutionalism Introduction Statism – paving the way to statist constitutionalism The establishment of statist-individualist constitutionalism The nine essential beliefs of statist-individualist constitutionalism State-based positive law, more specifically the formulations of the Constitution, is omnipresent The Constitution is rigid and actually supreme The Constitution is formulation-driven and has a formal-static character The supreme value that is placed on the formulations – the written words of the constitutional Document Pre-political The trias politica and the independence, impartiality and effectiveness of the judiciary The preoccupation – fixation – with micro theory (and the statist‑individualist approach to interpretation) The twosome consortium of the state and the individual – state sovereignty and abstract universal, individual human rights The state is anti-communitarian and anti-pluralist Statist-individualist constitutionalism’s three key mechanisms Supremacy proclamations, entrenchment and conformity mechanisms, andstrict amendment requirements The trias politica, checks and balances and the independence andimpartiality of the judiciary Bills of individual rights Chapter 3 - Statist-individualist Constitutionalism in Post 1994 South Africa Introduction The key mechanisms of statist-individualist constitutionalism in the South African constitutional order Supremacy proclamation, entrenchment and conformity mechanisms and strict amendment requirements Trias politica, checks and balances and the independence and impartiality of the judiciary The (justiciable) Bill of Rights The statist-individualist belief system in the South African constitutional discourse Chapter 4 - There is no Supreme Constitution Introduction Law’s dual dimensionality Conceptual clarification: legal norms and legal norm-formulations The basic thesis of the factual requisite (or dimension) of law The doctrine’s faith-strengthening language Exposition of the factual requisite of law and critique of the doctrine Substituting law arising from the behaviour of public office-bearers Lapsed law resulting from the behaviour of public office-bearers Substituting or lapsed law arising from the behaviour of(segments of) the public Still-born law, including still-born constitutional law Conclusion Chapter 5 - The Constitution of the Republic of South Africa is not Supreme and its Rights Not Entrenched Introduction The actual changes to the South African constitutional dispensation The centres of governmental power (1) (quasi-federalism) The centres where governmental power is exercised (2) (Hybrid governmental power) Cadre deployment and the patronage state The responsibility for safety and security The value basis and the official language dispensation in terms of the Constitution Founding values: (1) (Re)racialilastion substituting non-racialism (and consequences for freedom of expression) Founding values: (2) Homogenisation and racial representation (representivity) Founding values: (3) Ubuntu and its uncomfortable co-existence with the rule of law The substitution of the multilingual official language dispensation Conclusion Chapter 6 - The Unity of Powers and the Dependence and Partiality of the Judiciary Introduction Criteria for judicial appointments The falling-out of April 2013 Analysis and critique of the statist-individualist doctrine of judicial independence and impartiality The judiciary − not so separate and independent from the (rest of) the dominant elite The judiciary – not so impartial and not purely legally reasoning The transformationists in the same statist doctrinal trap Conclusion Chapter 7 - Constitutional Supremacy and Judicial Impartiality Hermeneutically Viewed Introduction Orthodox (deductive) constitutional interpretation Purposive interpretation Transformative (transformationist) interpretation (as an ingredient of transformationism) Homogenous egalitarian society Transformative interpretation − the transformationist role of the Constitutional Court Intra dominant elite hiccups and quarrels Transformationist interpretation in the Constitutional Court Conclusion Judicial interpretation of the Constitution Guaranteed judicial protection of individual rights? The supremacy of the Constitution Chapter 8 - Universal Individual Rights Introduction The way to the abstract individual and universal human rights Individual rights without communities The redundancy argument The definition (legal subjectivity) argument Conclusion Chapter 9 - Beyond Statist-Constitutionalism Introduction Autonomous, self-sustained communities; a multitude ofgovernmental centres A classical constitutional moment: Regnum and Sacerdotium Althusius’ Politica Politocracy Checks and balances The family ommerce, industry and the professions Educational institutions, universities in particular Formations of civil society Property Bibliography Index