Instituting conflict and disagreement? Reflections on transformative constitutionalism in South Africa

Abstract This article asks whether a conflictual understanding of democracy, which views indeterminacy, conflict, power, and disagreement as constitutive of the political, could shed light on transformative constitutionalism’s emancipatory possibilities and limits. It reads judgments in which South Africa’s Constitutional Court articulated a strong understanding of democratic accountability and participation through the lens of the conflictual democratic insight that every attempt to represent the will of the people leaves a remainder or outside. It further links the capacity of constitutional interpretation to disrupt social and economic inequality to the notion that the scope of democratic politics is itself deeply contested. The article explores the limits of transformative constitutionalism in South Africa with reference to the centralization of power, the marginalization of citizens who engage in politics outside formal democratic structures, and the hegemony of neoliberalism, which insulates market processes from democratic contestation and severs the link between constituted and constituent power. Drawing on conflictual democratic understandings of the ways in which universal values are infused with hierarchical distinctions that derive from an oppressive past, it tries to make sense of both the violence that is constitutive of the constitutional order and the transformative possibilities inherent in it.