South African Legal Culture and its Dis/Empowerment Paradox

Abstract

AbstractTwenty-five years since becoming a constitutional democracy, South Africa presents the perplexing paradox of arguably having the most progressive constitution in the world, marked by full-throated socioeconomic rights protection, while also being the most unequal country in the world. This chapter makes the argument that this alarming paradox can be at least partly understood in terms of a ‘dis/empowerment paradox’ endemic to South Africa’s legal culture. It takes a historical view of the formation and impact of South African legal culture and the various levels and ways in which the dis/empowerment paradox argued for has been, and continues to be, characteristic thereof. The chapter traces the contributions of the judiciary to shaping the country’s legally pluralistic culture over the course of history and into the present. It ultimately points to judicial complicity in restraining the full realization of freedom and justice under the law—both before and after the dawn of South Africa’s modern-day Constitution—by under-utilizing law’s potential for liberation. Tracing this historical arc is aimed at helping legal, anthropological, and wider readers not familiar with South Africa’s particular circumstances to better understand the concluding argument: namely, that the purported solution to South Africa’s problems described as ‘transformative constitutionalism’ presents notable pitfalls. While the chapter does not argue that the judiciary is solely, or even mainly, responsible for the dis/empowerment paradox of law, it does argue that the judiciary is somewhat complicit in the limited socioeconomic transformation seen subsequent to adoption of the country’s progressive Constitution.