Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction

by Heinz Klug

• ISBN13: 9780521786430
• ISBN10: 0521786436
• Format: Paperback
• Copyright: 2000-09-11
• Publisher: Cambridge University Press

Summary

Against the backdrop of South Africa’s transition from apartheid, this provocative book explores the role of late twentieth century constitutionalism in facilitating political change. Using South Africa as a case study, Klug’s larger project is to investigate why there has been renewed faith in justiciable constitutions and democratic constitutionalism despite the widespread recognition that courts are institutionally weak, lack adequate resources and are largely inaccessible to most citizens. He places this question in a broader context, evaluating the appeal of different constitutional models and illustrating how globalized institutions can be adapted to serve local domestic needs. Incorporating constitutional law, politics and legal history, this examination of South Africa’s constitution-making process provides important insights into the role of law in the transition to democracy.

Table of Contents

Acknowledgements	ix
Abbreviations	xi
Introduction	1	(1)
Law, globalism and political reconstruction	2	(3)
The role of law in democratic transitions	5	(3)
Political reconstruction and constitutional change	8	(3)
State reconstruction in the late twentieth century	11	(4)
Overview	15	(3)
Post-Twentieth-Century Constitutionalism?	18	(11)
Constitutionalism: Self-binding, representation and the limits of participation	18	(5)
Regulating political conflict at the end of history	23	(4)
International political culture and `legitimate' government	27	(2)
Legal Legacies and Constitutional Paths	29	(19)
Rejecting Judicial Review	30	(5)
Faith in the Law	35	(9)
Legitimacy of the Courts	44	(4)
Constitutionalism in Global Perspective	48	(21)
Globalization and its implications for systems of governance	49	(2)
Beyond the nation-state	51	(7)
Globalization and international political culture	58	(3)
Globalizing constitutionalism	61	(5)
Globalism, constitutionalism and the `Rule of Law'	66	(3)
Constitutional Strategies	69	(24)
Turning to constitutionalism	71	(14)
Constitutional responses to apartheid's legacy	85	(8)
Constitutionalism in the Democratic Transition	93	(25)
Sovereign possibilities	94	(1)
Procedure and substance in the constitution-making process	95	(15)
Participating from the outside: Mobilization and popular pressures on the makers of the interim constitution	110	(6)
Embracing constitutionalism, enabling democracy	116	(2)
Global Impact: International Imperatives and their Hybridization	118	(21)
At the core is property	124	(12)
Shaping local options: Globalism and hybridization	136	(3)
The Constitutional Court and the Institutional Dynamics of Constitutionalism	139	(21)
Creating the new Constitutional Court	140	(2)
Introducing constitutional review	142	(16)
Defending the Court's legitimacy	158	(2)
Constitutional Imaginations and the Possibilities of Justice	160	(18)
The parameters of constitutional imagination	160	(16)
Bounded alternatives, bounded conflicts	176	(2)
Conclusion	178	(5)
Notes	183	(41)
Bibliography	224	(36)
Index	260