A Comment from a South African Perspective on Directive and Transformative Constitutionalism in Comparative Constitutional Law

Jonathan Klaaren

doi:10.5771/0506-7286-2023-3-602

Contents
- Chapter Expand | CollapseAuthorsPage
- 491–492 Titelei/Inhaltsverzeichnis 491–492
- 493–610 Symposium 493–610
  - 493–505 The Directive Constitution in the Varieties of Constitutionalism: An Introduction Michael Riegner Michael Riegner 493–505
  - 506–523 "Constitucionalismo Dirigente" and Transformative Constitutionalism: Common Elements, Differences, and Methodological Challenges Mariana Canotilho Mariana Canotilho 506–523
  - 524–548 Asking for Directions: The Origins of Gomes Canotilho Directive Constitutionalism at the Crossroads of Contemporary Constitutional Thought Luís António Malheiro Meneses do Vale Luís António Malheiro Meneses do Vale 524–548
  - 549–567 Transformation by Decree? A (Brief) Reflection on the ‘Directive Constitution’ (Constituição Dirigente) in Brazil Florian F. Hoffmann, Fabio Carvalho Leite Florian F. Hoffmann, Fabio Carvalho Leite 549–567
  - 568–586 The Theories of Constituição Dirigente and Transformative Constitutionalism and Their Reception by Brazilian Constitutional Theory: An Approach Based on Critical Comparative Law Deo Campos Dutra Deo Campos Dutra 568–586
  - 587–601 Bridging Past and Future: Transformative Constitutionalism and Directive Constitutions Amidst Authoritarian Challenges Juliana Cesario Alvim Gomes Juliana Cesario Alvim Gomes 587–601
  - 602–610 A Comment from a South African Perspective on Directive and Transformative Constitutionalism in Comparative Constitutional Law Jonathan Klaaren Jonathan Klaaren 602–610
- 611–654 Abhandlungen / Articles 611–654
  - 611–632 State of Exception and Internal Colonialism:The Construction of the Belo Monte Power Plant in Brazil Giovanni Martins de Araújo Mascarenhas Giovanni Martins de Araújo Mascarenhas 611–632
  - 633–654 Lessons from the Law and Politics of Federalism in Africa: Federalism Is Bigger Than Federation; Constitutions Are More Than Single Mega-Documents; the International Trumps the Domestic; and the Past Continues to Matter Jan Erk Jan Erk 633–654
- 655–662 Buchbesprechungen / Book Reviews 655–662
  - 655–659 Arun K Thiruvengadam, Constitution of India: A Contextual Analysis Florian Matthey-Prakash Florian Matthey-Prakash 655–659
  - 659–662 Silvia von Steinsdorff, Ece Göztepe, Maria Abad Andrade and Felix Petersen, The Constitutional Court of Turkey Between Legal and Political Reasoning İlker Gökhan Sen İlker Gökhan Sen 659–662
- 663–663 VRÜ/WCL Article Prize Volume 54 (2021) 663–663
- 664–664 Call for Papers 664–664
- 665–666 Impressum 665–666
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VRÜ Verfassung und Recht in Übersee , page 602 - 610

A Comment from a South African Perspective on Directive and Transformative Constitutionalism in Comparative Constitutional Law

Autoren

Jonathan Klaaren

DOI
- doi.org/10.5771/0506-7286-2023-3-602
- ISSN: 0506-7286
- ISSN online: 2941-9603
Abstract

This special issue demonstrates the importance of attending to the reception of constitutional concepts in overlapping transnational and local contexts and, for Africans including South Africans, the importance of attending to the economic structures embedded in constitutional political texts. The most significant difference between directive constitutionalism and transformative constitutionalism is the constitutional audience or actor the concepts are primarily addressing – the legislature or the judiciary. This significant distinction reveals a fault-line within the South African development of transformative constitutionalism. This comment begins to explore how the focus within transformative constitutionalism on the judiciary – judges as audience – came to be. During the negotiations/compromise to end apartheid and to establish a democratic constitution, the actors were at times various times speaking to a future audience of legislators and at other times were speaking to an audience of judges. One early 1990 South African constitutional analysis focused on the Constitution to be drafted as a document not only aimed at legislators but indeed embodying constitutional directives in directive constitutionalism’s sense of the term. Two years later, the most influential writing on directive principles primarily viewed the idea through the then-ongoing debate over the timing and content of the South African Bill of Rights to be enforced by the judiciary. Within the broad church of transformative constitutionalism in South Africa, a democratic tradition of constitutionalism has persisted since the years of the late 1980s and early 1990s but is probably best described as minority or contesting. South African constitutional theory could use a bit less transformative and a bit more directive constitutionalism.
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