Constitutional law has moved to the centre of the agenda of comparative legal scholars in recent years. Since the collapse of communism, numerous States have undergone a process of transition to democracy. This has prompted widespread reflection within such states upon the fundamental values upon which society should be based, coupled with the need to redesign the institutional arrangements for government. Furthermore, even States whose constitutional frameworks superficially appear to be relatively stable, such as the United Kingdom, have witnessed significant, albeit less tangible, constitutional changes, such as the shift in the locus of power from a sovereign Parliament and centralized executive to devolved regional institutions with varying degrees of legislative power and to a judiciary operating a form of adjudication more closely akin to that exercisable in those legal systems characterised by constitutional supremacy.
In such fluid circumstances, comparative study of constitutional arrangements, practices and jurisprudence has distinct benefits. As Hirschl notes,
[C]omparative constitutional law is often used for purposes of self-reflection through analogy, distinction and contrast … At a more concrete level, constitutional practices in a given polity might be improved by emulating certain constitutional structures developed elsewhere. Likewise, comparative constitutional law has been offered as a guide to constructing new constitutional provisions and institutions'.Footnote 3
Nor is this form of study the sole domain of the academy. Judges have shown an increasing willingness to make reference to constitutional jurisprudence from elsewhere, facilitated in this regard by advances in information technology which render case-law easily accessible remotely. Indeed, some constitutional frameworks specifically enjoin judges to advert to pertinent jurisprudence from other jurisdictions. For example, section 39(1)(c) of the South African Constitution of 1996 provides that, when undertaking the task of interpretation of the Bill of Rights contained in Chapter 2 of that document, a court, tribunal or other forum ‘may consider foreign law’, albeit that—as Liebenberg observes in the penultimate Chapter of this impressive collection of essays—this obligation is not always fully honoured by South African courts with the consequence that options for the evolution of rights jurisprudence in that jurisdiction may be missed.
This book will be a worthy addition to the library of anyone seeking to reap the considerable rewards afforded by comparative constitutional study, even though it focuses solely upon constitutional adjudication in South Africa. In part, its value is simply a function of the intellectual benefits which may be derived from developing closer acquaintance with a Constitution which is widely regarded as one of the most progressive in the world, especially in its protection of socio-economic rights. However, it is also testament to the quality of the contributions contained therein. The book consists of a collection of essays flowing from a public lecture series connecting to a definitive four-volume commentary upon the Constitution, Constitutional Law of South Africa (2nd edition, Juta, Cape Town, 2008). The authors include a leading international scholar of constitutional law (Frank Michelman), four justices of the South African Constitutional Court (Pius Langa, Albie Sachs, Kate O'Regan and Laurie Ackermann) and a number of the most eminent South African academics specializing in this field, including Stu Woolman, Theunis Roux and Sandra Liebenberg. As might be expected from an assemblage of this calibre, the essays are carefully written, cogently argued on the basis of close readings of the constitutional text and comprehensive knowledge of the relevant jurisprudence, and, where appropriate, challenging and provocative.
Eight of the nine lead essays draw upon Chapters in Constitutional Law of South Africa which are usefully provided in full on a CD-ROM which accompanies the text, addressing issues of constitutional supremacy and appellate jurisdiction, democracy, application, limitations, dignity, equality, property and socio-economic rights. A further essay—which, to a substantial degree constitutes the raison d'être for the book—considers the role of the South African legal academy in interpretation of the constitutional text and jurisprudence as a response to a ‘gentle provocation’ by Justice Albie Sachs that academics had made significant and valuable contributions during the period of transition to a constitutional democracy, but had not done so subsequently.
The book takes the form of a series of dialogues or ‘conversations’, with each lead essay being followed by a reply written by a second author. This is an apt form of presentation for the subject-matter, given that South Africa, alongside Germany and (perhaps to a somewhat lesser extent) Canada, operates a particularly strong form of dialogic constitutionalism resting upon a ‘culture of justification’ in which the three branches of government operate in concert to achieve the transformative goals set out in the Constitution and in which adjudication thereon is not to be seen ‘as a means to preclude democratic dialogue but rather as a way of facilitating and structuring an inquiry into the justifiability of official conduct’.Footnote 4 This conversational format, while especially pertinent here, could perhaps be more widely adopted in legal texts, for if carried through satisfactorily (and it should be noted that certain of the ‘replies’ in this book are on the brief side), it preserves some of the intellectual cut and thrust which is the hallmark of the most successful and memorable academic conferences.
While this book is oriented most clearly towards the legal community within South Africa, there is much that will be of interest to scholars and students of constitutional and human rights law elsewhere. For example, the accounts of dignity, equality and socio-economic rights cover fields in which South Africa possesses among the most developed bodies of jurisprudence worldwide. Furthermore, within the broad topics covered in each Chapter, there are analyses of numerous discrete challenges of constitutional interpretation which will resonate much more widely, such as the utility of the ‘balancing’ metaphor in limitation clause analysis, the relative merits of thin procedural and thick deliberative judicial understandings of the principle of democracy and the meaning of a ‘reasonableness’ standard of review in the context of socio-economic rights claims.
The value of such discussions would, perhaps, have been enhanced by more frequent exposition in the body of the text of the pertinent constitutional provisions for a global readership which is likely to be less familiar with them, and there are occasions when more than a modest working knowledge of South African constitutional jurisprudence is demanded, although any deficiencies in this regard are at least partly offset by the inclusion of the CD-ROM. An index and list of contributors would also not have gone amiss. However, these are small quibbles. Overall, this is a most stimulating piece of scholarship which will significantly enhance our understanding of one of the most interesting constitutional frameworks in the world today. It will surely facilitate wider internal and external engagement with the lively interpretative community which surrounds it and which is represented in the pages of this book.
