@article{2015:bhana:the_substa,
title = {The Substance of Contractual Autonomy in the Twenty-First Century: The South African Experience},
year = {2015},
note = {In this article, I look at the values of freedom, dignity and
equality, as they are founded in the Constitution of the Republic of
South Africa, 1996 and consider how they ought to constitutionalise
the legal concept of contractual autonomy. I argue that the conception
of contractual autonomy in the post-apartheid era has to be a shifting
one that at once needs to be sensitive to the factual context, any
applicable fundamental human rights (as entrenched in the Bill of
Rights, Chapter Two of the Constitution), as well as the broader
constitutional vision of a substantively progressive and
transformative South Africa. To this end, I develop what I call the
‘foundational constitutional triad’ and use it as the framework
for my ensuing analysis of the founding values. My analysis of the
values then, reveals a distinct leaning toward a more full-bodied,
substantive conception of legal autonomy. Indeed, this stands to
reason given that the constitutional self is grounded essentially in
the broader transformative project of South African society. In the
end therefore, I maintain that if such an understanding of autonomy is
carried forward into the South African law of contract, it would be
able effectively to address the constitutional deficiencies of the
extant conception of contractual autonomy.},
journal = {VRÜ Verfassung und Recht in Übersee},
pages = {491--515},
author = {Bhana, Deeksha},
volume = {48},
number = {4}
}