oa Constitutional Court Review - Rationality, the rule of law, and the sovereign return



Spectres haunt the rule of law in South Africa. Law is deeply implicated in constituting and sustaining the structures and practices of the colonial and apartheid regimes. Despite this legacy, law is at the heart of transformation and renewal. The constitutional dispensations of 1994 and 1996 expressed a great faith in law - especially in 'the law of the law'. The early transformative metaphors of the 'book' and the 'bridge' in the Epilogue to the interim constitution evidence the aspiration that the introduction of a fundamental law and constitutional supremacy would help a fractured and wounded polity to turn the page, 'open a new chapter', and journey to a new social and political order. The abandonment of parliamentary sovereignty in favour of constitutional supremacy placed the rule of law and its custodians - judges - at the apex of the juridico-political order. It can of course be argued that this dispensation was arrived at through a representative and deliberative process where the peoples' delegates constituted a new order, which, through democratic means, posited the constitution as supreme. This reflects a feature of many modern liberal constitutional orders that claim to logically sustain the tension between constitutional supremacy and the sovereignty of the 'people', or indeed to sustain a productive tension about where sovereignty is located. This very liberal story is replete with tensions and contradictions - ones that are amplified and potentially unsustainable and undesirable in the South African setting. In this essay I consider aspects of the rule of law and constitutional supremacy as a feature of neoliberal governance. I contrast this with approaches to plurality that can inform the rule of law in ways that are more consistent with the aspiration of renewing the social and juridical order.


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