Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction.

• Jurisdiction: Australia
• Date: 01 December 2001
• Author: Crossland, Ashley

by Heinz Klug (Cambridge: Cambridge University Press, 2000) pages i-xi, 1-270. Price $64.95 (hardcover). ISBN 0 521 78113 2.

The role of law in political transitions is a hot topic for legal sociology and legal theory, and South Africa is the foremost case study in this area. Just as South Africa for a long time represented a paradigmatic wicked legal system, it now assumes a similar importance for studies of `peaceful', law-bound emergence from such wickedness. Indeed, there is something distinctively legalistic about the South African transition. Whereas the emphasis in Eastern European transitions has been the fostering of markets and capitalism, South African society, already run along capitalist lines, gives its Constitution (1) pride of place in the post-apartheid constellation. South Africa relies heavily on law's symbolic capacity for marking new beginnings.

But there is a sense in which law will always disappoint on this score, will never live up to the powers of transformation and justice with which we invest it. This is especially true in South Africa. An ethical legal system is not possible in the context of grossly exploitative economic structures; the legal system carries more of the burden of transforming society and legitimising power than it can truly bear. One result may be an uneven political development. For instance, a key difference between South African and Eastern European transitions is that, while the latter have been overtly -- though not necessarily effectively -- concerned with the fostering of `civil society', in South Africa this phrase only circulates to lament civil society's puzzling poverty in the post-apartheid era. Where, as in South Africa, the conception of transition is overwhelmingly legalistic, such substantive changes are arguably `crowded out' of the discourse and the dynamic of transition.

The distinctively legalistic nature of South Africa's post-apartheid transition naturally makes Heinz Klug's study of constitutional change in South Africa a significant text for those interested in the law's role in political transformation. However, Klug's theme of `global constitutionalism' (2) will ensure that he captures an even wider audience. The last 15 years of the 20th century saw a proliferation of new constitutions identifiably American in pedigree, combining civil and political rights, strong judicial review and a federal system of power-sharing. This convergence of ideas and ideology arguably reaches its peak in South Africa, where it is expressed as an astonishing list of rights (including socioeconomic and cultural rights) and a powerful Constitutional Court.

But it would be a mistake to see the adoption of this Enlightenment model of constitutionalism as automatic or in some way `natural'. Klug asks the following question: how does a left-wing revolutionary party, having suffered years of oppression under a European legal system in which the role of judges was instrumental, come to accept and then advocate a constitutional model distinguished by Western liberal ideas and a powerful judiciary? As recently as 1990, the leaders of the African National Congress were highly critical of a court-administered Bill of Rights. Many believed such a system would not only risk another white oligarchy, but might obstruct the party's plans for transformation.

Klug's answer to his own question is not altogether compelling. At times, the book seems to lack a strong thesis, appearing more a meditation on the theme of contemporary constitutional `glocalisation' (the interpenetration of the global and the local) than a set of solid theoretical arguments. However, there is a visible through-line. Klug's first task is to take full stock of the globalisation process, and he examines the conceptual issues at stake with thoroughness. Since the end of the Cold War, we have seen, through the `emergence of...