n South African Journal on Human Rights - Instituting public freedom or extinguishing constituent power? Reflections on South Africa's constitution-making experiment

Volume 26, Issue 1
  • ISSN : 0258-7203



This article juxtaposes two interpretations of South Africa's constitution-making process. The first is critical of the process's emphasis on legal continuity, its fragmentation of popular sovereignty and its reduction of constituent to constituted power. The second, by contrast, holds that public freedom was instituted precisely by splintering sovereignty, by undermining the supposed unity and identity of 'the people', by affirming plurality, and by subjecting all power (including the power of the Constitutional Assembly) to the demand for justification. By interrogating the different notions of collective selfhood and sovereignty informing these interpretations, the article starts to explore the link between the founding of the Constitution and the possibility - and limits - of a constitutional politics aimed at the ongoing transformation of social relations of inequality and subordination.

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