Building the Constitution: The Practice of Constitutional Interpretation in Post-Apartheid South Africa

Description

This revisionary perspective on South Africa's celebrated Constitutional Court draws on historical and empirical sources alongside conventional legal analysis to show how support from the African National Congress (ANC) government and other political actors has underpinned the Court's landmark cases, which are often applauded too narrowly as merely judicial achievements. Standard accounts see the Court as overseer of a negotiated constitutional compromise and as the looked-to guardian of that constitution against the rising threat of the ANC. However, in reality South African successes have been built on broader and more admirable constitutional politics to a degree no previous account has described or acknowledged. The Court has responded to this context with a substantially consistent but widely misunderstood pattern of deference and intervention. Although a work in progress, this institutional self-understanding represents a powerful effort by an emerging court, as one constitutionally serious actor among others, to build a constitution.

James Fowkes is a former clerk at the South African Constitutional Court and studied law at the University of the Witwatersrand, Johannesburg and Yale Law School, Connecticut. He is currently a senior researcher at the Institute for International and Comparative Law in Africa, University of Pretoria.

'James Fowkes has produced a book that is nothing short of brilliant ... Fowkes' account is ... a breath of fresh air in that whilst refusing to fetishise the courts, it weaves together a near seamless account of South African constitutionalism that is firmly grounded in South Africa's history, politics, constitutional theory and case law.' Sanele Sibanda, University of the Witwatersrand, Johannesburg 'This is a marvellous book. Read it. Whether you are interested in South African law and politics, comparative constitutional law, socio-legal studies or just an engaging and intellectually satisfying read, you will not regret taking it up. James Fowkes develops a fresh analytical framework for understanding South Africa's post-apartheid constitutional order and the role of the South African Constitutional Court that successfully integrates legal and political perspectives. His 'constitution-building account' of the Court's jurisprudence and its institutional role in South African law and politics is a clear-eyed realist redefinition of constitutional 'success' and also a convincing, creative and eminently readable defense of the Court's work.' Brian Ray, Co-Director, Cybersecurity and Privacy Protection Center, Cleveland-Marshall College of Law 'James Fowkes' gold-standard work not only examines closely what are usually regarded as the most significant cases of the heralded Constitutional Court of South Africa but also engages with the best of comparative constitutional scholarship. His re-interpretations of both are compelling and persuasive - this is a fine example of constructive scholarship, destined to be often cited as well as followed. Building the Constitution could also not be more timely in its local context as South Africa enters a new phase of building its democracy twenty years after its new Constitution.' Jonathan Klaaren, University of the Witwatersrand, Johannesburg 'This is a break-through book. Fowkes locates the constitutional court within the larger political system. His holistic emphasis on the evolving constitutional regime provides a fundamental perspective on present-day South Africa's political and constitutional dilemmas.' Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University, Connecticut 'James Fowkes provides a fresh and powerful understanding of the Constitutional Court in South Africa. In this excellent book he argues that the Constitutional Court demonstrates, through its jurisprudence and the context within which the cases play out, that it is a constitution-building court. The book's most powerful arguments for this thesis examine and contest many of the standard interpretations of the Court's jurisprudence, providing us with a very well argued alternative perspective.' Heinz Klug, Evjue-Bascom Professor of Law and Director of the Global Legal Studies Centre, University of Wisconsin Law School