Authoritarian Constitutionalism
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Authoritarian Constitutionalism

Comparative Analysis and Critique

Edited by Helena Alviar García and Günter Frankenberg

The contributions to this book analyse and submit to critique authoritarian constitutionalism as an important phenomenon in its own right, not merely as a deviant of liberal constitutionalism. Accordingly, the fourteen studies cover a variety of authoritarian regimes from Hungary to Apartheid South Africa, from China to Venezuela; from Syria to Argentina, and discuss the renaissance of authoritarian agendas and movements, such as populism, Trumpism, nationalism and xenophobia. From different theoretical perspectives the authors elucidate how authoritarian power is constituted, exercised and transferred in the different configurations of popular participation, economic imperatives, and imaginary community.
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Chapter 3: Authoritarian constitutionalism: the South African experience

Dennis M. Davis

Abstract

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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