Francois Venter

Constitutionalism and religion

Contents: PART I RELIGION, THE STATE AND CONSTITUTIONALISM 1. The Roots of a Relationship: Religion, The State and its Power 2. Globalization, Constitutional Law and Religion 3. Constitutionalism PART II RELIGION IN LAW 4. Religion in Constitutions 5. Religion in International Law 6. Travails of the Judges in Religious Cases PART III OBLIGATIONS OF THE CONSTITUTIONAL STATE IN RELIGIOUS MATTERS 7. The Weaknesses of Contemporary Statehood in the Face of Religious Pluralism 8. The Demands of Constitutionalism Regarding Religion 9. A Post-secular Approach to Religious Pluralism Index

The limits of transformation in South Africa’s constitutional democracy

Abstract In the South African public vernacular ‘transformation’ has become a key notion, but its meaning is, to put it mildly, unclear. Bringing clarity of meaning to, or removing the confusion caused by widespread opportunistic misuse of the term is not attempted here, but the limits of its employment, especially in law, are explored. First the constitutional foundations of transformation are sketched and its ideological, intellectual and legal notions identified. A review of the surfacing in legislation and jurisprudence of the concept over the past two decades is presented. Finally, by means of a conclusion, the limits of transformation are considered from a legal point of view. While it is clear that the theme of ‘transformation’ has penetrated South African law, the article suggests that lawyers interested in maintaining the constitutional demands of reasonable balance should seriously contemplate the limitations that the law imposes on this pliable, and ideologically compromised notion. A review of legislation reveals a disconcerting picture of indeterminacy brought about by the systematic, but mostly unannounced, translation of ideological goals into legislation. The judicial use of the concept, sometimes in its intellectualised form, sometimes in disguised or openly dogmatic fashion, has not contributed much to remove the uncertainty, because clear and objective reference to its full constitutional meaning is largely absent. It is found that the ideological rendering of ‘transformation’ is not consistent with the Constitution, but, if given a meaning in tune with the Constitution, the pursuit of ‘transformation’ must be understood to be a legitimate governmental purpose compliant with the rule of law. ‘Transformation’, appropriately construed, should not be problematic, but the indeterminate manner in which it is being utilised, especially in law, in a manner contaminated by ideology not supported by the Constitution, tends to neutralise the rule of law.

Rethinking the language of constitutional comparison

Abstract While constitutional comparatists may be talking the same language while saying (or thinking) different things, the significance of constitutional communication and more importantly of comparative endeavours may suffer seriously under unarticulated conceptual confusion. It has become important, if not essential in this era of escalating trans-nationalism, globalisation and comparativism, to confront the reality of the variance of meaning hidden under identical or homonymic constitutional terminology. Avoidance of this issue quietly begets confusion in the ever-increasing international and domestic legal discourse. The success of liberal theory in establishing the terminological standard for constitutional language is addressed before the conceptual foundations of the popular phrase ‘we, the people’, the social contract, the state, democracy, sovereignty, the rule of law and constitutional review jurisdiction are briefly probed. With reference to certain paradoxes in constitutional thinking and explanations for entrusting authority to the state, the epistemological challenges facing constitutional comparatists are addressed, followed by a suggestion for finding a measure of relief from the conceptual confusion by means of a comparative instrument. Identification of the terminological difficulties reveals the need for renewed investigation into a range of fundamental issues, explicitly approached from divergent points of departure.

The Rule of Law as a Global Norm for Constitutionalism

The rule of law is widely used (and sometimes cynically abused) in domestic and international constitutional discourse, occasionally with clear meaning, more often obscurely. When mention is made of constitutionalism (an equally imprecise term), the rule of law is almost always invoked. Constitutionalism purports to reflect good values, and so does the rule of law, but listing these values comprehensively to the satisfaction of all would be an impossible quest. Nevertheless, due to the universality of the notion of reciprocity, agreement that human dignity and non-arbitrariness are the most essential characteristics of the rule of law, is attainable. The rule of law offers a tertium comparationis particularly useful for constitutional comparison.

Liberal democracy : The unintended consequence. South African constitution-writing propelled by the winds of globalisation

Abstract Is the apparent deterioration of South African constitutionalism to be ascribed to the manner in which the Constitution was written? To understand and evaluate the acclaimed process of producing the equally applauded Constitution requires insight into the history and attitudes of the main role-players in the constitution-writing process. The role of technical advisors and visionary political leaders needs to be recognised, and the global context in which the constitutions were written must be understood, in order to explain the unlikely conversion of the country to liberal democracy in 1993. The 15 years of unfettered constitutional jurisprudence of the Constitutional Court has established a benchmark against which future growth or decline of constitutionalism may be measured. There are, however, disturbing signs pointing towards the decline of constitutionalism in a South Africa which is governed and administered by authorities who seem to have failed to internalise the precepts of the constitutional state. Some indicators useful for monitoring progress towards constitutional maturity or decline are proposed.