n Law, Democracy & Development - 'The new constitutionalism' : the global, the postcolonial and the constitution of nations




Warily, but I hope not too wearily, I want to return to some old ground in constitutional law and question certain distinctions which go to constitute it. These are distinctions between the international and the national, public law and private law (a distinction which seems to retain a stronghold on the ordering of legal knowledge in South Africa), the distinction between written and unwritten constitutions, and the whole divide between what typically goes in a constitution and what typically does not. My purpose in departing from such distinctions is not simply to better order or disorder our legal knowledge but, rather, to show how these distinctions increasingly obstruct an adequate perception and an adequate response to that which goes to the making, to the constituting of constitutions, and thence to the terms of our being together, This is a growing inadequacy which is not only legal in the narrow sense but political and ontological as well. Broadly, if a constitution, both legally and mythically, is to relate somehow to what a people is and to what it is becoming, then the constitutional frame, as it is usually understood, is coming to be more and more limited. This is a rash, not to say rude, thesis to advance in a country which so recently produced what many would aptly see as the most progressive constitution of the twentieth century, but a consolation may be that this is a constitution better poised than most to respond to the imperatives I will be outlining.


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