Karl E. Klare

Legal Culture and Transformative Constitutionalism

(1998). Legal Culture and Transformative Constitutionalism. South African Journal on Human Rights: Vol. 14, No. 1, pp. 146-188.

Law-Making as Praxis

There has been for some time a recognized crisis in classical Marxist political theory that can no longer, if it ever did, adequately account for the role of the state in advanced capitalism. This crisis has called forth a series of creative but incomplete attempts to conceptualize the advanced capitalist state. There is likewise a long-smoldering crisis in liberal legal theory, which has, in turn, called forth a critical response symbolized by such developments as the creation of the Conference on Critical Legal Studies. One major strand in the emerging attack on liberal legalism is the elaboration of a neo-Marxist legal theory, which is laying foundations for the creation of a Marxist jurisprudential culture in the United States.

Transformative constitutionalism and the common and customary law

Abstract A basic assumption of the Constitution, which finds expression in its ‘development clauses’ (ss 8(3) & 39(2)), is that South Africa cannot progress toward a society based on human dignity, equality, and freedom with a legal system that rigs a transformative constitutional superstructure onto a common and customary law base inherited from the past and indelibly stained by apartheid. We examine South African judges’ performance in implementing the development clauses through the lens of legal culture. A central concern is the potential of traditional South African legal culture to constrain the transformative project. South Africa has an advanced Constitution informed by the values of social interdependence and ubuntu, but its jurists continue to deploy traditional methods of legal analysis. Ironically, the United States has a classical liberal and individualist charter, but the Legal Realist tradition bequeathed American lawyers a storehouse of modernist legal methods well suited to South Africa’s transformative project. Surveying the cases over the first 15 years of the new dispensation, we find some leading judgments that demonstrate the capability of the courts to transform the common law and that provide glimpses of a more egalitarian, inclusive, and caring legal infrastructure. The chief disappointments are the absence thus far of a coherent exploration of the Constitution’s values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-ofpowers vissues. The inhibiting effect of mainstream legal culture is not entirely responsible for these difficulties, but concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well taken.

On Ruth Dukes, The labour constitution: the enduring idea of labour law

Ruth Dukes gifts us with an ambitious scholarly accomplishment that conveys a compelling message. In its origins as a discipline, labour law was committed to achieving egalitarian redistribution, democratising economic life, and ending domination and subordination in work. In recent decades for a complex of reasons, labour law has forsaken these enduring aspirations. We should recover and modernise them and re-orient our work in their light.