Constitutional Courts as Democratic Consolidators: Insights from South Africa Twenty Years On

Abstract

One of the major fault-lines running through current thinking about the role of constitutional courts in democratic consolidation has to do with the question of judicial agency. For some commentators, constitutional courts have very little capacity to act independently of their political environment. It follows that, at most, a constitutional court may be able to amplify broader trends towards democratic consolidation. In the absence of those trends, however, a court is essentially powerless, either to add to the quality of democracy or to arrest a slide back into authoritarianism. For others, constitutional courts do possess at least some measure of agency. By strategically asserting their review powers, they can build their legitimacy and become a forceful check on anti-democratic tendencies within the political system. This paper tries to find a middle path between these two views: to correct the pessimistic view by injecting into it a sense of the social-systemic distinctiveness and thus the legitimating potential of law, and to correct the overoptimistic view by emphasising the real-world constraints under which constitutional courts work. After setting out this general approach, the paper explores its explanatory power in relation to the South African case.