Vertical Sovereignty, Horizontal Constitutionalism, Subterranean Capitalism: A Case of Competing Rertroactivities

Abstract

This article engages with Andrew Arato’s post-sovereign model of constitution-making. It does so with specific reference to Arato’s claim that the South African constitutionmaking process constituted a ‘perfection’ of the post-sovereign model. It investigates this claim against the background of sceptical perspectives on the South African constitutionmaking process, especially those perspectives that view the South African transition and constitution-making process as more an outcome of a deal between the Apartheid Business Elite and the ANC leadership than of the round table negotiations that Arato takes as the heart of the post-sovereign process. The article ultimately defends Arato’s claim with recourse to a Kelsenian contention which takes the impure origins of all law for granted, and recognises the need to fictionalise or presuppose pure foundations for the sake of entertaining the possibility of new law, and law as such.