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Dennis M. Davis

The history of constitutionalism in South Africa reveals the manner in which law reinforced the governance of the authoritarian regime of Apartheid South Africa while at the same time creating a space for litigation strategies which, at the very least, tempered the excesses of Apartheid rule. The chapter shows that the ambiguous history which preceded the introduction of the 1996 Constitution influenced the drafters of the Constitution to make a commitment to constitutional as opposed to majoritarian democracy. The chapter proceeds to caution against the liberal claim that constitutionalism can be equated with democracy. In this way, the authority of the constitution reduces the potential for other forms of politics. It does so by assuming a position of hegemonic authority, thereby preventing a debate aimed at the construction of a society which differs from the normative framework as set out in the constitutional text.

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Dennis M. Davis and Karl Klare

‘Critical Legal Realism’ (CLR) refers to a major branch of the Critical Legal Studies movement in the United States (mid-1970s to mid-1990s). CLR pursued two theory projects in tandem: promoting the reception into US legal thought of modernist and postmodernist social and cultural theory, and recovering and extending techniques of legal criticism developed by the Legal Realists and their predecessors going back to sociological jurisprudence and the revolt against formalism at the turn of the twentieth century. This chapter outlines CLR’s main theoretical claims and approaches beginning with critical analytics and the salience of legal culture, proceeding to ideas about the legal construction of the social order, and concluding with transformative possibilities in legal work. Themes discussed include legal indeterminacy; the experience of legal ‘boundedness’; gaps, conflicts and ambiguities in legal discourses; the constitutive role of legal rules, practices and discourses; the distributive and ideological stakes of law; and the way in which interrogation of background legal rules may reveal transformative possibilities.