A Comment from a South African Perspective on Directive and Transformative Constitutionalism in Comparative Constitutional Law

Abstract

This special issue demonstrates the importance of attending to the reception of constitutional concepts in overlapping transnational and local contexts and, for Africans including South Africans, the importance of attending to the economic structures embedded in constitutional political texts. The most significant difference between directive constitutionalism and transformative constitutionalism is the constitutional audience or actor the concepts are primarily addressing – the legislature or the judiciary. This significant distinction reveals a fault-line within the South African development of transformative constitutionalism. This comment begins to explore how the focus within transformative constitutionalism on the judiciary – judges as audience – came to be. During the negotiations/compromise to end apartheid and to establish a democratic constitution, the actors were at times various times speaking to a future audience of legislators and at other times were speaking to an audience of judges. One early 1990 South African constitutional analysis focused on the Constitution to be drafted as a document not only aimed at legislators but indeed embodying constitutional directives in directive constitutionalism’s sense of the term. Two years later, the most influential writing on directive principles primarily viewed the idea through the then-ongoing debate over the timing and content of the South African Bill of Rights to be enforced by the judiciary. Within the broad church of transformative constitutionalism in South Africa, a democratic tradition of constitutionalism has persisted since the years of the late 1980s and early 1990s but is probably best described as minority or contesting. South African constitutional theory could use a bit less transformative and a bit more directive constitutionalism.