Comparative Analysis and Critique
Edited by Helena Alviar García and Günter Frankenberg
Chapter 3: Authoritarian constitutionalism: the South African experience
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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